Definitions

Discrimination

Discrimination is treating a person adversely because of their membership in a protected class, so as to interfere with or limit the person’s employment, education, or ability to participate in or benefit from any SUNY Upstate program, activity or service. 

Examples of discrimination based on a protected class include:

• Singling out or targeting an individual for different or less favorable treatment because of their membership in a protected class;

• Failing or refusing to hire or promote a qualified candidate because of their membership in a protected class;

• Failing or refusing to admit a qualified candidate to an educational program because of their membership in a protected class;

• Terminating an individual from employment or an educational program because of their membership in a protected class.

Discrimination may also result from failure of the university to provide reasonable accommodations to individuals when required due to the individual’s disability, religion, pregnancy status, breastfeeding status, transgender status, or domestic violence victim status.

Harassment based on protected class, to include sexual harassment, is a type of discrimination.

Harassment 

Harassment is unwelcome conduct directed toward, or differential treatment of, a person or group because of their actual or perceived membership in a protected class, which creates an intimidating, hostile, demeaning, or offensive working or learning environment.

The harasser can be a supervisor, co-worker, subordinate, student, or non-Upstate employee (contractor, vendor, visitor, patient, intern, temporary worker, etc.). 

Harassment may be subtle and indirect or may be blatant and overt.  Harassment may consist of repeated actions or may arise from a single incident.

Determining what constitutes harassment depends on both subjective and objective factors, and is based on the totality of the circumstances surrounding an alleged incident or course of conduct, including the frequency, nature and severity of the conduct.  Conduct that a reasonable person would consider nothing more than “petty slights” and/or “trivial inconveniences” may not amount to harassment under this policy. However, such conduct may still violate other expectations for appropriate/professional conduct set by SUNY Upstate.

Examples of harassment that are prohibited pursuant to Upstate policy are, but are not limited to:

• Offensive remarks, verbal abuse, or other hostile behavior such as insulting, teasing, mocking, degrading or ridiculing a person or group;

• Racial slurs, derogatory remarks about a person’s accent, or display of offensive symbols;

• Commenting about physical characteristics, clothing or lifestyle of a person or group in a demeaning manner;

• Unwelcome or inappropriate physical contact, intimidation, comments, questions, advances, jokes, epithets or demands;

• Displays or circulation of written or graphic materials that denigrate or show hostility or aversion towards an individual or group; and/or

• Unwillingness to train, evaluate, assist, work with, or receive care from a person or group.

Sexual Harassment

Sexual harassment is a specific form of harassment that can occur regardless of gender identity or sexual orientation, and is defined as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal, non-verbal or physical conduct of a sexual nature, or because of sex, gender, pregnancy, sexual orientation, gender identity, gender expression, or the status of being transgender, when:

• Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, academic standing, or status in a program, course, or activity (quid pro quo); or

• Submission to or rejection of such conduct is used as the basis for employment or educational decisions, or for academic evaluation, grades, or advancement (quid pro quo); or

• Such conduct has the purpose or effect of unreasonably interfering with a person or group’s academic or work performance, or creating an intimidating, hostile, demeaning, or offensive working, learning, or campus environment (hostile work environment); or

• Such conduct has the purpose or effect of denying or limiting a person’s ability to participate in or receive benefits, services, or opportunities in SUNY Upstate’s programs or activities; or

• Such conduct involves unwelcome physical contact with parts of another person’s body which may cause that person to feel degraded or abused; or

• The unwelcome behavior is for the purpose of gratifying the actor’s sexual desire; or

• The unwelcome conduct constitutes more than “petty slights” or “trivial inconveniences.”

The following are examples of sexual harassment that violate Upstate policy:

• Forced sexual intercourse or assault;

• Unwelcome touching, tickling, pinching, patting, grabbing, brushing up against another person, hugging, cornering, kissing and/or fondling;

• Sexual jokes, comments about a person’s sexuality or experience, lewd remarks, suggestive or insulting sounds, leering, whistling, obscene gestures, requests for sexual favors, repeated and unwelcome requests for dates;

• Sharing sexually inappropriate images or videos, such as pornography, to include sexual or discriminatory displays or publications anywhere on SUNY Upstate’s campus, on SUNY Upstate’s email server, or on any SUNY Upstate electronic devices;

• Direct or implied promises of preferential treatment in exchange for submitting to sexual conduct, including soliciting or attempting to solicit any individual to engage in sexual activity for compensation or reward in employment or education;

• Hostile actions taken against a person because of that person’s sex, gender, pregnancy, sexual orientation, gender identity, gender expression, or the status of being transgender, such as:

  • Interfering with, destroying or damaging a person’s workstation, tools or equipment, or otherwise interfering with the individual’s ability to perform the job;

  • Sabotaging an individual’s work;

  • Bullying, yelling, name-calling;

  • Stating an intention or threat to expose another person’s sexual orientation or sexual experiences with others; or

  • Any other examples of inappropriate harassment set forth in this policy.

Retaliation

Retaliation is any adverse action taken against an individual because they engaged in any of the following protected activities:

• Raised a concern or filed a complaint about actual or suspected discrimination or harassment on the job or in the educational setting;

• Filed a complaint with a government agency about discrimination or harassment on the job or in the educational setting;

• Participated in an internal or external investigation or lawsuit, including as a witness, involving claims of discrimination or harassment; or

• Opposed unlawful discrimination or harassment.

Retaliation is also prohibited against individuals who are associated with an individual who engages in any of the above protected activities, such as a family member.
Examples of retaliation include termination, demotion, refusal to promote, changing a grade, denying access to a program, or any other adverse action that would discourage a reasonable person from engaging in any of the above protected activities

Affirmative Consent

Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

• Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.

• Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

• Consent may be initially given but withdrawn at any time.

• Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.

• Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.

• When consent is withdrawn or can no longer be given, sexual activity must stop.