Title IX

Complaints of sex discrimination that do not constitute sexual harassment, as defined below, or retaliation from making a complaint of sexual harassment should be reported to the building principal.  The building principal is then responsible for notifying the District’s Title IX Coordinator of the complaint.  If a complaint involves the building principal, it should be reported directly to the Title IX Coordinator.  The Title IX Coordinator will ensure an investigation is completed in accordance with the requirements of School Board Policy 522.  The District’s Title IX Coordinator is the Director of Human Resources and Administrative Services.  The Title IX Coordinator’s contact information is:

Director of Human Resources and Administrative Services
Sauk Rapids-Rice Public Schools
1833 Osauka Road NE, Sauk Rapids, MN 56379
(320) 258-1808 - Phone
titleix@isd47.org 

The grievance process below applies to allegations of sexual harassment and retaliation related to sexual harassment complaints pursuant to Title IX requirements effective August 14, 2020.

Definitions

“Complainant” – An individual who is alleged to be the victim of conduct that could constitute sexual harassment.

“Education Program or Activity” – A District education program or activity includes locations, events, or circumstances over which the District has exercised substantial control over both the respondent and the context in which alleged sexual harassment occurs.

“Formal Complaint” – A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the District investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the District’s education program or activity.

“Respondent” – An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

“Sexual Harassment” – Conduct on the basis of sex that satisfies one or more of the following:

1. An employee of the District conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;  
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity; or  
3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

“Supportive Measures” -- Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the District’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the District’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. 

At all stages these grievance procedures are subject to the following requirements:

1. Complainants and respondents will be treated equally by (1) providing remedies where a determination of responsibility for sexual harassment has been made against a respondent and (2) following this grievance process before the imposition of any disciplinary action or other actions (that are not supportive measures) against a respondent.  Remedies must be designed to restore or preserve equal access to the District’s education program or activity. Such remedies may include supportive measures. Remedies may also include disciplinary or punitive action against a respondent upon a determination of responsibility following the grievance process.
2. All evidence must be objectively evaluated, including inculpatory and exculpatory evidence. Credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
3. There will be a presumption that respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
4. Individuals designated by the District as a Title IX Coordinator, investigator, decision-maker, or any person designated by the District to facilitate an informal resolution process must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
5. Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process will receive the training required by 34 C.F.R. § 106.45(b)(1)(iii).
6. The standard of evidence used to determine responsibility is the preponderance of the evidence standard.
7. The District’s representatives may not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
8. The range of supportive measures offered by the District may include the following: counseling, extensions of deadlines or other course-related adjustments, modifications of class schedules, campus escort services, mutual restrictions on contact between the parties, increased monitoring of certain areas, and other similar measures. 

Any instance of sexual harassment should be reported to the Title IX Coordinator. Any District employee who has actual knowledge of alleged sexual harassment must notify the Title IX Coordinator. Regardless of whether a formal complaint is filed, the District must respond to the alleged sexual harassment in a manner that is not clearly unreasonable in light of the known circumstances.

Upon being notified of an allegation of sexual harassment, the Title IX Coordinator will contact the complainant to discuss:

1. The availability of supportive measures with or without the filing of a formal complaint;
2. The complaint’s wishes regarding supportive measures; and
3. The process for filing a formal complaint. 

A formal complaint alleging sexual harassment must be filed by a complainant or signed by the Title IX Coordinator and must request that the District investigate the allegation of sexual harassment.  A complainant may file a formal complaint with the Title IX Coordinator in person, by mail or by e-mail. A formal complaint filed by the complainant must contain the complainant’s physical or digital signature or must otherwise indicate under the circumstances that the complainant is the person filing the formal complaint. The filing of a formal complaint will trigger the notice and investigation process outlined below.

If a formal complaint is not filed by the complainant or Title IX Coordinator, the Title IX Coordinator will still offer the complainant supportive measures and will work with the District’s administration to ensure that the District’s response to the concern is reasonable under the known circumstances.

A formal complaint must be dismissed by the Title IX Coordinator if (1) the conduct alleged in the formal complaint, even if proved, does not constitute sexual harassment as defined above or (2) the conduct alleged did not occur against a person in the United States.  The dismissal of a formal complaint for Title IX purposes does not prevent the District from taking action under another provision of the code of conduct for students. 

Upon filing of a formal complaint, the Title IX Coordinator will notify the known parties, in writing, of the following:

1. These grievance procedures and any informal resolution process.
2. The allegations potentially constituting sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and the location of the alleged harassment, if known.  The notice must also include:
   1. A statement that the respondent of the complaint is presumed not responsible for the alleged conduct;
   2. A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney;
   3. A statement that the parties may inspect and review evidence;
   4. Notice of any provision in the code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.  

This written notice must be provided as soon as possible, and at least within two (2) school days, unless good cause exists to provide later notice.  Good cause may include considerations such as as the absence of a party, concurrent law enforcement activity, the need for translation, or the need to accommodate a disability.  If, in the course of an investigation, the District decides to investigate allegations about the complainant or respondent that are not included in the initial notice, notice of the additional allegations must be provided to the parties whose identities are known. 

The District designates representatives who will serve as investigators.  However, depending on the circumstances, the District reserves the right to appoint a different investigator, including a third-party who is not a District employee.  An investigation must commence as soon as possible after a formal complaint is filed and proper notice is provided to the parties.

The following standards will apply to an investigation under these procedures.

1. The District bears the burden of proof and is responsible for gathering evidence.
2. The District cannot access, consider, disclose, or otherwise use a party’s records from a physician, psychiatrist, psychologist, or similar professional that are made and maintained in connection to the treatment of that party, unless the party (or a parent) provides voluntary, written consent.
3. Both parties must have an opportunity to present fact and expert witnesses, as well as other evidence.
4. Parties cannot be prohibited from discussing the allegations with others.
5. The District must provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied by an advisor of their choice, who may be an attorney, and not limit the party’s choice or presence of advisor. However, the investigator may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties).
6. The investigator must provide reasonable advance written notice of the date, time, location, participants, and purpose for any meetings, including hearings or investigative interviews, to any invited or expected participant.
7. Both parties must be allowed to review all evidence.

The investigator must prepare an investigation report that fairly summarizes relevant evidence and provide a copy of the investigation report to each party and the party’s advisor, if any, at least ten days before a determination of responsibility is made by the decision-maker. In addition, prior to completing the investigative report, the investigator must send all evidence to the parties or their advisors, if any, and provide the parties ten days to submit a written response.  

The District designates decision-makers for purposes of these grievance procedures.  The District reserves the right to appoint as decision-maker a third-party who is not a District employee. The Title IX Coordinator and the individual who served as the investigator may not be the decision-maker.

The District has opted not to provide live hearings as part of these grievance procedures. After the investigation report is provided to the parties, the decision-maker must allow for each party to submit written questions to any party or witness. The decision-maker determines whether the questions are relevant and, if so, the decision-maker must send the questions to the party or witness, allow time for a written response, and provide the written response to the party who submitted the question. The decision-maker must also allow limited follow-up questions from each party.  The decision-maker will have discretion to determine how much time will be allowed for preparing questions and responses, provided that the allotted amount of time is not inconsistent with the goal of securing a reasonably prompt resolution.

After the parties are provided an opportunity to submit written questions, the decision-maker will issue a written decision that includes the following information:

1. Identification of the allegations potentially constituting sexual harassment.
2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held.
3. Findings of fact supporting the determination.
4. Conclusions regarding the application of the District’s code of conduct to the facts.  
5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the District will impose on the respondent, and whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided by the District to the complainant.
6. The District’s procedures and permissible bases for the complainant and respondent to appeal. 

Any party may appeal the written decision.  An appeal must be submitted, in writing, to the District’s Superintendent within two (2) days, not including weekends.  An appeal may be based on the following:

1. Procedural irregularity that affected the outcome of the matter.
2. New evidence that was not reasonably available at the time the determination regarding responsibility or a dismissal was made and that could affect the outcome of the matter.
3. The Title IX Coordinator, investigator(s), or decision-makers(s) had a conflict of interest or bias for or against complaints or respondents generally or the individual complainant or responded that affected the outcome of the matter.

In the event of a timely appeal, the District will designate a trained individual to preside over the appeal. The decision-maker for the appeal will not be the initial decision-maker.

The decision-maker on the appeal will review the record developed during the grievance procedure and will be a written decision granting appropriate relief, which may include affirming the initial decision, modifying the initial decision, or overturning the initial decision. The written decision will be issued within five (5) days. 

At any time before a decision is made, the District may facilitate an informal resolution process, such as mediation, that does not involve a full investigation or decision regarding responsibility, as long as the parties receive written notice of the following:

1. The allegations.
2. The requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations.
3. That at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.
4. Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

The District must obtain the parties’ voluntary, written consent to the informal resolution process and the District will not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.  The Title IX Coordinator is responsible for coordinating available informal resolution options. 

The District may remove a student from an education program or activity on an emergency basis, as long as the District does an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This is subject to any rights the student may have under the Individuals with Disabilities Education Act, Section 504, the ADA, or Minnesota’s Pupil Fair Dismissal Act.  The District may also place an employee on paid suspension during an investigation, subject to any requirements in an applicable collective bargaining agreement. 

Employees and students may be disciplined if it is determined through this grievance procedure that sexual harassment has occurred.  The range of disciplinary action for students includes, but is not limited to, in-school suspension, out-of-school suspension, expulsion, and exclusion.  Students will retain any rights they may have under the Pupil Fair Dismissal Act.   The range of disciplinary action for employees includes, but is not limited to, a verbal or written reprimand, suspension without pay, and immediate termination.  Employees will retain any rights they may have to challenge discipline through a grievance process outlined in a collective bargaining agreement. 

Students, employees or parents who make complaints in good faith, must be free from retaliation, coercion, and reprisal in seeking resolution of their complaint. Furthermore, persons acting as witnesses to a complaint, in good faith, must be free from retaliation. Retaliation is a separate violation distinct from the initial underlying sex harassment allegation. Claims of retaliation must be reported to the Title IX Coordinator and are subject to the grievance procedures outlined above.  

Individuals who knowingly file a false or misleading complaint or who knowingly provide false or misleading information during the grievance process may be subject to appropriate disciplinary action.

Any of the timelines outlined in these grievance procedures may be temporary delayed or extended for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities. 

In August 2020, new Title IX requirements governing sexual harassment complaints and investigations were implemented by the Office of Civil Rights (“OCR”), part of the U.S. Department of Education. The new standards outline comprehensive notice and procedural requirements schools must follow when responding to sexual harassment claims from both students and employees. The new standards are controversial. Some believe they are unfair to complainants, while others believe they are an appropriate correction of prior OCR guidance that has been criticized for being unfair to the accused. The new standards went into effect on August 14, 2020, and will require significant changes to the manner in which schools respond to sexual harassment allegations.

RUPP, ANDERSON, SQUIRES, WALDSPURGER & MACE, P.A.
333 South Seventh Street, Suite 2800
Minneapolis, MN 55402
Office (612) 436-4300
Fax (612) 436-4340
www.raswlaw.com

TITLE IX COMPLIANCE TRAINING
Rupp, Anderson, Squires, Waldspurger & Mace, P.A. School Law Seminar
September 30, 2022

Kristin C. Nierengarten Kristin.Nierengarten@raswlaw.com
Liz J. Vieira Liz.Vieira@raswlaw.com

NOTE: These materials and the corresponding presentation are meant to inform you of interesting and important legal developments. While current as of the date of presentation, the information that is provided may be superseded by court decisions, legislative amendments, rule changes, and opinions issued by bodies interpreting the area of law. We cannot render legal advice without an awareness and analysis of the facts of a particular situation. If you have questions about the application of concepts addressed in this outline or discussed in the presentation, you should consult with your legal counsel.  ©2022 Rupp, Anderson, Squires, Waldspurger & Mace, P.A. New regulations have been proposed. The notice and comment period on the proposed regulations ended on September 12, 2022. OCR will consider the comments and, if necessary, make revisions and identify an implementation date sometime in the future. This presentation reflects the regulations and most recent guidance as of September 30, 2022. 

A. Title IX Personnel and Training. Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must be trained on:

1. The definition of sexual harassment under Title IX;
2. The scope of the district’s educational programs and activities;
3. How to conduct an investigation and grievance process, including hearings, appeals, and informal resolution processes;
4. How to serve impartially, including by avoiding prejudgment of facts at issue, conflicts of interest, and bias;
5. How to determine whether questions and evidence are relevant;
6. When questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are relevant; and
7. How to prepare an investigative report that fairly summarizes relevant evidence. 34 C.F.R. § 106.45(b)(1)(iii).

B. Posting Materials. Districts are required to post the training materials used to train their Title IX Coordinator, investigators, decision-makers, and individuals authorized to facilitate informal resolution on the district website. 34 C.F.R. § 106.45(b)(10)(i)(D). These materials must also be maintained by the district for seven years. Id.  

A. What is sexual harassment? Sexual harassment is conduct on the basis of sex that includes one or more of the following:

1. An employee conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct (also called quid pro quo harassment);
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a school’s education program or activity;
3. “Sexual assault,” “dating violence,” “domestic violence,” or “stalking” as defined in various federal statutes.

Hypothetical: One of your district’s male teachers, Kirk, frequently went out of his way to speak with your school nurse, Courtney. Kirk stopped by Courtney’s office at least a few times each week to compliment Courtney on her looks. During their conversations, Kirk frequently told Courtney about marital struggles he was having with his wife. At one point, Kirk told Courtney he wished his wife was more like Courtney. Courtney began dreading her conversations with Kirk, and did whatever she could to avoid him. Does this type of employee-to-employee conduct implicate the Title IX regulations’ definition of sexual harassment?

B. Where do the Title IX regulations apply? The Title IX regulations extend to:

1. Any “education program or activity,” including “locations, events, or circumstances over which the recipient exercised substantial control over both the [subject of a complaint] and the context in which the sexual harassment occurs…” 34 C.F.R. § 106.44(a).
2. One of the only exclusions is conduct that takes place outside of the United States. 34 C.F.R. § 106.8(d).

Hypothetical: Ms. Blanchard assigned a group project to students in her class. The students were required to meet together outside of class to complete the project. Kate and Vince were assigned to complete the project together. The two met via Zoom on a Sunday night to complete the project, using their personal computers. During their meeting, Vince pressured Kate to reveal her breasts, stating that he wouldn’t work on the project until 3 she’d done so. Kate refused, and reported Vince to Ms. Blanchard the next day. Do the Title IX requirements apply in that context?  

C. Key Title IX personnel. The following individuals play an important role in administering and fulfilling a school district’s Title IX obligations.

1. Title IX Coordinator.
   
   a) Title IX Coordinator must be “authorized” to coordinate the district’s efforts to comply with Title IX. This is a critical role and should not be taken lightly.
   
   b) Can be any employee, but should be an administrator or director-level employee because of the nature of information they will need to access and the responsibilities of the role. Often, Human Resources personnel serve as the Title IX Coordinator.
   
   c) May be designated by title rather than name, i.e. “Human Resources Director” rather than “Jane Smith,” to account for turnover in important positions.  
   
   d) A district may designate more than one Title IX Coordinator or “Assistant” or “Deputy” coordinators.
    
2. Title IX Investigator(s).
   
   a) An “investigator” assesses allegations of sexual harassment by interviewing witnesses and examining evidence. The investigator prepares a report following the conclusion of the investigation. A Title IX Coordinator may serve as an investigator.
   
   b) An investigator may also serve as an informal resolution facilitator. An investigator may not, however, serve as a decision-maker.
   
   c) Districts may designate multiple individuals to serve as investigators, and multiple investigators may investigate any given Title IX complaint.
    
3. Title IX Decision-Maker. 
   
   a) A “decision-maker” makes the final determination regarding responsibility with respect to a Title IX complaint.  
   
   b) The “decision-maker” may not be the Title IX Coordinator or the investigator(s).
   
   c) A district may utilize non-employees to serve as the district’s “decision-maker.” If the district utilizes a non-employee, it must be cognizant of its data practices obligations, and ensure that it has the ability to control the non-employee’s use of data.  
    
4. Title IX Appellate Decision-Maker.
   
   a) Any party has a right to appeal a Title IX determination regarding responsibility. Districts must identify a Title IX appellate decision-maker to adjudicate appeals.
   
   b) This individual may not be the same person as the Title IX Coordinator, “investigator,” or “decision-maker.”
    
5. Informal Resolution Facilitator. 
   
   a) In some cases, districts may offer to facilitate an informal resolution process, such as mediation, to resolve a Title IX grievance prior to full adjudication. The informal resolution facilitator oversees this process.

D. Training for key Title IX personnel. Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must be trained on:

1. The definition of sexual harassment under Title IX;
2. The scope of the district’s educational programs and activities;
3. How to conduct an investigation and grievance process, including hearings, appeals, and informal resolution processes;
4. How to serve impartially, including by avoiding prejudgment of facts at issue, conflicts of interest, and bias;
5. How to determine whether questions and evidence are relevant;
6. When questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are relevant; and
7. How to prepare an investigative report that fairly summarizes relevant evidence.  

E. Training for other staff. Districts should ensure that all staff, and not just key Title IX personnel, receive some Title IX training. At minimum, staff should be aware of the definition of sexual harassment and that they must report any allegations of sexual harassment to the Title IX Coordinator immediately. Districts are deemed to have knowledge of sexual harassment if any employee has knowledge. Training all staff is thus important to ensure sexual harassment is reported, and Title IX personnel can complete their Title IX duties.

F. Title IX administrative requirements. The Title IX regulations include the following administrative requirements:

1. Districts must designate a Title IX Coordinator to address Title IX complaints. The Coordinator’s contact information must be posted “prominently” on the district’s website, and must be included in student and employee handbooks.
2. Districts must develop written Title IX grievance procedures, post them on the district’s website, and include them in any student and employee handbooks.
3. For every incident of alleged sexual harassment that requires a response, the district must maintain records of the complaint, any discipline or other consequences, and any remedies or supportive measures offered to the complainant for seven years. Similarly, records of any investigation, appeal, or informal resolution must be maintained for seven years.

G. Prohibition on retaliation.  

1. Districts and individuals are prohibited from intimidating, threatening, coercing, or discriminating against anyone because a person made a complaint or participated in an investigation.
2. Complaints about retaliation should be investigated pursuant to the grievance process.

H. Data privacy. The regulations state that schools cannot use the Family Educational Rights and Privacy Act (“FERPA”) as a reason for not complying with these regulations. The Minnesota Government Data Practices Act (“MGDPA”) similarly does not provide a basis for avoiding a district’s Title IX obligations.

I. Nondiscrimination Policy. Schools are required to have a nondiscrimination policy, but the regulations do not include more detail about what must be included in one.

1. Schools should review existing policy language, such as policies based on the MSBA Model Policies 413 and 522, to ensure there is no confusion about who serves as the Title IX Coordinator and to ensure that existing policy language does not contradict the new Title IX requirements.
2. Notice of Policy
   
   a) The regulations require that notice of the non-discrimination policy must be provided to: “applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the [district.]” 34 C.F.R. § 106.8(a) and § 106.8(b).
   
   b) Notice of the policy must also identify the Title IX Coordinator and include their office address, email address, and telephone number. Id. One way to ensure notices remain accurate is to direct Title IX concerns to a centralized email address such as TitleIX@yourdistrict.org.
   
   c) Notice of the policy and contact information for the Title IX Coordinator must also be “prominently displayed” on a school district’s website, and be included in each handbook 7 or catalog made available to “applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the [district.]”  

A. Minnesota Human Rights Act (“MHRA”).

1. The MHRA prohibits discrimination against students or employees based on certain characteristics, including sex, sexual orientation, and gender identity.  
2. In the context of educational institutions, the MHRA specifically prohibits discrimination “in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby.”  
3. To “discriminate” under the MHRA means to “segregate or separate.”
4. The MHRA also creates liability for individual employees who aid and abet violations of the MHRA.

B. Title VII.

1. Title VII protects employees from discrimination on the basis of sex.
2. It is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .”
3. Prior to the new regulations, the Office for Civil Rights at the U.S. Department of Education had been interpreting the Title IX and Title VII sexual harassment standards to be essentially the same. The new regulations make it clear that there are different standards. Title IX applies to students and employees in an educational institution, so when an employee files a complaint, districts should 8 be aware that the Title VII and Title IX standards for sexual harassment are not the same.
   
   a) V. For Title VII, sexual harassment is defined as:
   
   Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
   
   (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,  
   (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
   (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.