IV. Prohibited Conduct – Sex-Based Harassment and Retaliation

Only allegations of Prohibited Conduct (Sex-Based Harassment and related Retaliation), as defined by this Policy, are addressed under this Policy. (2020 Title IX Prohibited Conduct is addressed under Addendum A and Addendum B.)

Other forms of sex discrimination, including discrimination on the basis of sex, sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity, and gender expression are prohibited and will be addressed by each TCC Institution in its individual policies.

This section provides the definitions of Prohibited Conduct for purposes of this Policy.

A. Sex-Based Harassment

Sex-Based Harassmentis a form of sex discrimination and means sexual harassment and other harassment on the basis of sex as defined by Title IX, including on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity, and gender expression.

Sex-Based Harassment includes the following:

1. Quid Pro Quo

Quid Pro Quo is defined as:

Someone from or in the work or educational setting, including an employee agent, or other person authorized by a TCC Institution to provide an aid, benefit, or service under a TCC Institution’s education program or activity, who explicitly or implicitly conditions the provision of an aid, benefit, or service of a TCC Institution on an individual’s participation in unwelcome sexual conduct, which includes but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, including under any of the following conditions:

  • Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress;
  • Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual; or,
  • Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

Quid Pro Quo can include situations in which an employee, or agent, or individual who purports to have authority under a TCC Institution to provide and condition an aid, benefit, or service under the TCC Institution’s education program or activity on a person’s participation in unwelcome sexual conduct, even if that person is unable to provide that aid, benefit, or service.

Additionally, the threat of a detriment falls within the definition of Quid Pro Quo, whether or not the threat is actually carried out (e.g. the threat to award a poor grade to a student unless they participate in unwelcome sexual conduct could constitute Quid Pro Quo as it is a condition placed on the provision of the student’s education, which is a service of a TCC Institution).

Conditions may involve academics and extracurricular activities within TCC.

2. Sex-Based Hostile Environment Harassment in Programs and Activities

Sex-Based Hostile Environment Harassment is defined as:

  • Unwelcome sex-based conduct (where sex includes sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity and gender expression) that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from any TCC Institution’s education program or activity; or
  • Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting where the conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

3. California Sex-Based Harassment in Employment

For TCC Institutions whose employees, including student-employees, are covered by this Policy, this form of Prohibited Conduct will be addressed under this Policy and is defined as:

Any unwelcome behavior towards an employee (which for this definition includes a student-employee in their capacity as an employee), applicant for employment, unpaid intern, contractor or volunteer, that is reasonably regarded as offensive, that is based on sex and that:

  • Sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, or,
  • Affects the victim’s ability to perform the job as usual, or,
  • Otherwise interferes with and undermines the victim’s personal sense of well-being.

For California Sex-Based Harassment in employment, a single incident of harassing conduct based on sex may create a hostile work environment if the harassing conduct has unreasonably interfered with the victim’s work performance or created an intimidating, hostile, or offensive work environment. Whether or not the person meant to give offense or believed their comments or conduct were welcome is not significant. Rather, the Policy is violated when other individuals, whether recipients or mere observers of the conduct, are actually offended by comments or conduct based on sex and the conduct is considered offensive by a reasonable person.

Examples of conduct that may constitute California Sex-Based Harassment in employment may include, but are not limited to:

  • Unwanted physical touching;
  • Telling sexually explicit jokes or stories;
  • Making comments or gestures reasonably regarded as lewd or offensive;
  • Displaying sexually suggestive objects, cartoons, or pictures;
  • Sending sexually explicit messages by letter, notes, electronic mail, social media posting, or telephone;
  • Making unwelcome comments reasonably regarded as offensive about a person’s body, physical appearance, or clothing;
  • Frequent use of unwelcome terms of endearment; or
  • Repeatedly asking an individual for a date or meetings outside of working hours after they have indicated an unwillingness to go.

4. Sexual Assault under Title IX

Sexual Assault is any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. In California, Affirmative Consent is required.[1]

For the purpose of these definitions, a Sexual Act is defined as conduct between persons consisting of:

  • Contact between the penis and the vulva, or between penises and vulvas;
  • Contact between the penis and the anus;
  • Contact between the mouth and the penis;
  • Contact between the mouth and the vulva;
  • Contact between the mouth and anus;
  • Contact between anuses; or,
  • Contact involving any of the above or the buttocks or breasts.

Private body parts include all of the body parts specified above, including genitals, groin area, breasts and buttocks.

Sexual Assault includes:

  • Rape—The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. In California, Affirmative prohibition. (This type of conduct is not eligible for mediation as a form of agreement-based resolution[2] in California).Consent is required. Attempted Rape falls under this
  • Fondling—The touching of the private body parts of another for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.  In California, affirmative consent is required. (This type of conduct is not eligible for mediation as a form of agreement-based resolution in California.)
  • Private body parts include genitals, groin area, breasts, and buttocks.
  • Incest—Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.   (This type of conduct is not eligible for mediation as a form of agreement-based resolution in California).
  • Statutory Rape—Sexual intercourse with a person who is under the statutory age of consent. In California the statutory age of consent is 18. (This type of conduct is not eligible for mediation as a form of agreement-based resolution in California).

5. Sexual Violence under California Education Code

TCC also prohibits Sexual Violence as defined by the California Education Code.

“Sexual violence” means physical sexual acts perpetrated against a person without the person’s Affirmative Consent. Physical sexual acts include both of the following:

  • Rape, defined as penetration, no matter how slight, of the vagina or anus with any part or object, or oral copulation of a sex organ by another person, without the consent of the victim.  (This type of conduct is not eligible for mediation as a form of agreement-based resolution in California).
  • Sexual battery, defined as the intentional touching of another person’s intimate parts without their Affirmative Consent, intentionally causing a person to touch the intimate parts of another without Affirmative Consent, or using a person’s own intimate part to intentionally touch another person’s body without Affirmative Consent. (This type of conduct is not eligible for mediation as a form of agreement-based resolution in California).

6. Sexual Exploitation

TCC also prohibits Sexual Exploitation as defined by the California Education Code. For this Policy, Sexual Exploitation includes a person taking sexual advantage of another person for the benefit of anyone other than that person without that person’s consent, including, but not limited to, any of the following acts:

  • The prostituting of another person.
  • The trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud, or coercion.
  • The recording of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, without that person’s consent.
  • The distribution of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure.
  • The viewing of another person’s sexual activity or intimate parts, in a place where that other person would have a reasonable expectation of privacy, without that person’s consent, for the purpose of arousing or gratifying sexual desire.

Intimate body parts include genitals, groin area, breasts, buttocks, anus, vulva, and mouth.

7. Dating Violence

Dating Violence is violence committed by a person:

  • Who is or has been in a social relationship of a romantic or intimate nature with the victim; and 
  • Where the existence of such a relationship shall be determined based on a consideration of the following factors: 
    • The length of the relationship;
    • The type of relationship; and 
    • The frequency of interaction between the persons involved in the relationship. 

Emotional and psychological abuse do not constitute violence for the purposes of this definition. 

8. Domestic Violence

Domestic violence is violence committed by a person who:

  • Is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the State of California or a person similarly situated to a spouse of the victim;
  • Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
  • Shares a child in common with the victim; or
  • Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the State of California.

Emotional and psychological abuse do not constitute violence for the purposes of this definition.

9. Stalking on the Basis of Sex

Engaging in a course of conduct, on the basis of sex, directed at a specific person that would cause:

  • a reasonable person to fear for the person’s safety or the safety of others; or
  • suffer substantial emotional distress. 

B. Retaliation

TCC prohibits retaliation against any person opposing Prohibited Conduct or participating in any Prohibited Conduct Resolution Process, including an investigation, whether internal or external to TCC.

Retaliation includes threats, intimidation, harassment, coercion, discrimination, violence, or any other conduct against any person by TCC, a student, or an employee or other person authorized by TCC to provide aid, benefit, or service under any TCC Institution’s education program or activity, for the purpose of interfering with any right or privilege secured by this Policy, or because the person has reported information, made a Complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy, including the Agreement-Based Resolution Process, Investigation and Hearing Resolution Process , and in any other action taken by a TCC Institution to promptly and effectively end any Prohibited Conduct in its education program or activity, prevent its recurrence, and remedy its effects. Retaliation does not include perceived or petty slights, or trivial annoyances.

This Policy also applies to peer retaliation, which is defined as retaliation by a TCC student against another TCC student.

A TCC Institution may require an employee or other person authorized by the TCC Institution to provide aid, benefit, or service under the TCC Institution’s education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing under this Policy.

[1] Affirmative Consent is defined in Section XXIII of this Policy.

[2] Agreement-Based Resolution is discussed in Section XIII.B.