Section 0240-06-01-.01 - DEFINITIONS(1) Actual knowledge: notice of sexual harassment or allegations of sexual harassment to ETSU's Title IX Coordinator or any ETSU official who has authority to institute corrective measures on behalf of ETSU or to any employee of an elementary or secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This definition is not met when the only ETSU official with actual knowledge is also the respondent.(2) Complainant: an individual who is alleged to be the victim of conduct that could constitute sexual harassment. References in this rule to the singular "complainant" include the plural, as applicable.(3) Deliberately indifferent: a response that is clearly unreasonable considering the known circumstances.(4) Education program or activity: locations, events, or circumstances where ETSU exercised substantial control over both the respondent and the context in which the sexual harassment occurs, including but not limited to any building owned or controlled by a student organization that is officially recognized by ETSU as well as any building in which University School is located.(5) Elementary and secondary school: The terms "elementary school and secondary school" mean University School.(6) Formal complaint: a document filed and signed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting ETSU investigate the allegation of sexual harassment. As used in this definition, the phrase "document filed by a complainant" means a document or electronic submission that contains the complainant's physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.(7) Hearing officer: the person who is the decision-maker with respect to the determination of responsibility after a live hearing. Hearing officer may also mean a committee that is the decision-maker with respect to the determination of responsibility after a live hearing. A hearing officer cannot be the same person(s) as the Title IX Coordinator or the investigator(s). A hearing officer may be, but is not limited to, an Administrative Law Judge or other person specially trained to conduct live hearings of sexual harassment complaints.(8) Live hearing: a face-to-face proceeding before a hearing officer during which the parties may present evidence and cross-examine witnesses. Live hearing includes a hearing conducted via a live videoconferencing system. Live hearings may be conducted with all parties physically present in the same geographic location or, at ETSU's discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.(9) Notice: the provision of information by United States Mail, courier service, or e-mail. When notice is sent by United States mail or courier service, the notice is effective on the date that the notice is mailed or delivered to the courier service. When notice is hand delivered to the parties from the institution, notice is effective on the date that the notice is delivered to the parties. When notice is sent by email, the notice is effective on the date that the email is sent to the parties' institution-provided email account.(10) Party: either complainant or respondent. References in this rule to the plural "parties" include complainant and respondent.(11) Respondent: an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. References in this rule to the singular "respondent" include the plural, as applicable.(12) Sexual harassment: conduct because of sex that satisfies one (1) or more of the following: (a) An ETSU employee conditioning the provision of an aid, benefit, or service of ETSU on an individual's participation in unwelcome sexual conduct;(b) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to ETSU's education program or activity; or(c) Sexual assault as defined by federal law, "dating violence" as defined by federal law, "domestic violence" as defined by federal or state law, or "stalking" as defined by federal law, as follows:1. Sexual assault means any nonconsensual sexual act proscribed by state or Federal law, including when the victim lacks capacity to consent.2. Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.3. Domestic violence means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the domestic- or family- violence laws of the state of Tennessee.4. Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to - (A) fear for his or her safety or the safety of others or (B) suffer substantial emotional distress.(13) 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 ETSU's education program(s) or activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or ETSU's educational environment, or deter sexual harassment. Supportive measures may include but are not limited to 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.(14) Title IX Coordinator: the person designated and authorized by ETSU to coordinate its efforts to comply with its Title IX responsibilities.Tenn. Comp. R. & Regs. 0240-06-01-.01
Emergency rules filed August 14, 2020; effective through February 10, 2021. Emergency rules expired effective February 11, 2021, and the rules reverted to their previous statuses. New rules filed May 4, 2021; effective 8/2/2021.Authority: T.C.A. §§ 49-8-101(a)(2)(A), 49-8-203(a)(1)(D), and 49-8-203(a)(4).