Section 0240-02-10-.02 - DEFINITIONS(1) Complainant - A person who is alleged to be the victim of conduct that could constitute Sexual Harassment. A complainant may also be referred to as a Party.(2) Consent - An active agreement to participate in a sexual act. An active agreement is words and/or actions that indicate a willingness to participate in a sexual act. Consent cannot be given by an individual who is asleep; unconscious; or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason; or is under duress, threat, coercion, or force. Past consent does not imply future consent. Silence or an absence of resistance does not imply consent. Consent can be withdrawn at any time.(3) Education program or activity - Education programs and/or activities include locations, events, or circumstances over which the TBR or a TBR institution exercises substantial control over both the respondent and the context in which the alleged sexual harassment occurred. Relevant factors include whether the alleged conduct took place (i) on or off premises owned or controlled by TBR or a TBR institution, (ii) during school or work hours, (iii) as part of an institution-sponsored social activity, and (iv) as part of an activity that advances an educational purpose. Education programs or activities also include any building owned or controlled by an officially-recognized student organization. Whether the respondent is a TBR or a TBR institutional employee, and if so, the nature of the respondent's employment may be relevant. No single factor is determinative, including whether the alleged harassment took place on premises owned or controlled by the TBR or a TBR institution. The Title IX Coordinator will make a fact-specific decision whether, if proven, the allegations arise out of an education program or activity.(4) Force/Forced - Words and/or conduct that, viewed from the perspective of a reasonable person, substantially impair(s) a person's ability to voluntarily choose whether to take an action or participate in an activity. Examples of force include, without limitation: physical force (e.g., hitting, punching, slapping, kicking, restraining, choking, kidnapping, using a weapon, blocking access to an exit);(a) Words and/or conduct that would cause a reasonable person to fear: 1. Physical force or other harm to the person's health, safety, or property, or a third person's health, safety, or property;2. Loss or impairment of an academic benefit, employment benefit, or money;3. Disclosure of sensitive personal information or information that would harm a person's reputation;4. Disclosure of video, audio, or an image that depicts the person's nudity or depicts the person engaging in a sexual act(s); or5. Other immediate or future physical, emotional, reputational, financial, or other harm to the person or a third person.(5) 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 TBR or the TBR institution investigate the allegation. At the time of filing a formal complaint, a complainant either must be participating in or attempting to participate in the TBR or TBR institution's education program or activity implicated by the formal complaint.(6) "Incapacitation" means that a person lacks the ability to actively agree to a sexual act because the person is asleep, unconscious, under the influence of an anesthetizing or intoxicating substance such that the person does not have control over their body, is otherwise unaware that a sexual act is occurring, or their mental, physical, or developmental abilities renders them incapable of making a rational informed judgment. Incapacitation is not the same as legal intoxication.(7) Respondent - A person who has been alleged to be a perpetrator of conduct that could constitute sexual harassment. A respondent may also be referred to as a party.(8) "Retaliation" for purposes of these rules means to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by these rules or by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing. Intimidation, threats, coercion, or discrimination, including charges against an individual that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by these rules constitutes retaliation. Retaliation is a violation of these rules regardless of whether the underlying allegation is ultimately found to have merit. (a) The exercise of rights protected under the First Amendment and other provisions of the United States Constitution does not constitute retaliation.(b) Charging an individual with a violation of these rules or other rules for making a materially false statement in bad faith in the course of a grievance proceeding under these rules does not constitute retaliation.(9) Sexual Harassment - Conduct on the basis of sex that satisfies one (1) or more of the following: (a) An employee of TBR or a TBR institution conditioning provision of an aid, benefit, or service on an individual's participation in unwelcome sexual conduct (quid pro quo);(b) Unwelcome conduct of a sexual nature determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the institution's education program or activity. "Reasonable person" means a reasonable person under similar circumstances as and with similar identities to the Complainant. A TBR institution will consider the totality of the circumstances, including without limitation, the context in which the conduct and/or words occurred, and the frequency, nature, and severity of the words and/or conduct. In no event shall sexual harassment be construed to prohibit speech protected by the First Amendment to the United States Constitution (e.g., merely offensive or insulting speech); or(c) Sexual assault as defined by federal law, dating violence as defined by federal law, domestic violence as defined by state or federal law, or stalking as defined by federal law.Tenn. Comp. R. & Regs. 0240-02-10-.02
New rule filed July 13, 2021; effective 10/11/2021.Authority: T.C.A. §§ 4-5-101, et seq. and 49-8-203.