On February 12, 1999, Peter Vogel wrote and asked the panelists to
clarify what they understand by the terms sexual harassment and
sex-based harassment and whether, when referring to one, the other is
implied. Peter, thank you for asking.
When OCR issued its guidance on sexual harassment, it described two
types of sexual harassment as follows:
"Quid Pro Quo Harassment. A school employee explicitly or implicitly
conditions a student's participation in an education program or
activity or bases an educational decision on the student's submission
to unwelcome sexual advances, requests for sexual favors, or other
verbal, nonverbal, or physical conduct of a sexual nature."
(footnotes omitted)
"Hostile Environment Sexual Harassment. Sexually harassing conduct
(which can include unwelcome sexual advances, requests for sexual
favors, and other verbal, nonverbal, or physical conduct of a sexual
nature) by an employee, by another student, or by a third party that
is sufficiently severe, persistent, or pervasive to limit a student's
ability to participate in or benefit from an education program or
activity, or to create a hostile or abusive environment." (footnotes
omitted)
The guidance also referenced gender-based harassment, which we
believe means the same thing as Peter's reference to "sex-based
harassment." With respect to gender-based harassment, the guidance
states:
"It is also important to recognize that gender-based harassment,
which may include acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex, but not involving conduct of
a sexual nature, may be a form of sex discrimination that violates
Title IX if it is sufficiently severe, persistent, or pervasive and
directed at individuals because of their sex. For example, the
repeated sabotaging of female graduate students' laboratory
experiments by male students in the class could be the basis of a
violation of Title IX. Although a comprehensive discussion of
gender-based harassment is beyond the scope of this Guidance, in
assessing all related circumstances to determine whether a hostile
environment exists, incidents of sexual harassment could create a
hostile environment, even if neither the gender-based harassment
alone nor the sexual harassment alone would be able to do so."
(footnotes omitted)
Thus, as OCR uses the terms "sexual harassment" and "gender-based
harassment," we are referring to different concepts that can occur
separately or together. I hope this is helpful.
Doreen Dennis
Attorney, OCR
doreen_dennis@ed.gov
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