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Is a “Friendly Kiss” Sexual Harassment Under Title IX

Under Title IX of the Education Amendments of 1972, discrimination on the basis of sex is strictly prohibited in all schools, institutions, programs, and educational activities that receive any amount of federal funding. The law is clear: Sexual harassment, which includes sexual misconduct, is a form of sex-based discrimination that violates Title IX. Of course, it is not always clear as to what exactly constitutes sexual harassment.

You may be wondering: Can a “friendly” kiss be considered sexual harassment? The short answer is ‘yes’, a person can be a victim of a sexual harassment even if the initiator had no ill intent. In this article, our Connecticut Title IX attorneys provide an overview of the most important things you need to know about an alleged harasser’s “intent” and how it will impact a sexual harassment complaint.

Title IX and Sexual Harassment: What You Should Know About the Standard

Sexual harassment is not acceptable. Everyone associated with a university, from students to employees, deserves an environment free from any unwelcome form of sexual harassment or sexual misconduct. As defined by the Department of Education (DOE) Office for Civil Rights, there are two primary types of sexual harassment:

  1. Quid Pro Quo Harassment: With quid pro quo harassment, a student or employee’s position or benefits are based, at least in part, on their willingness to perform sexual favors for a harasser. As an example, a college student who has been offered better grades or a letter of recommendation in return for sexual favors has been a victim of quid pro quo sexual harassment.
  2. Hostile Environment Harassment: A hostile educational environment is one in which a student or employee has been forced to endure sexually harassing conduct which includes but is not limited to unwelcome advances, requests for sexual favors, insulting or derogatory comments, sexually explicit jokes, and/or physical contact to the point that it is so severe, pervasive, or persistent that it adversely interferes with their ability to participate or benefit from an educational program.

If the “friendly” kiss was in exchange for a benefit, then that qualifies as quid pro quo sexual harassment under the law. If no benefit was offered, the “friendly” kiss could still constitute hostile environment sexual harassment.

Any conduct that is ‘severe’ or ‘pervasive’ or ‘persistent’ to the point that it interferes with a person’s rights is hostile environment sexual harassment. What if it is truly just a friendly kiss or good-natured gesture? Could that still be sexual harassment? The answer is a resounding “yes” if the victim does not view the kiss as being so innocuous or friendly but sees it as unwelcome.

Moreover, a kiss intended as friendly could also be sexual misconduct if the person initiating the kiss did not get affirmative consent for the kiss.

The Impact on the Victim Matters far More than Intent

A kiss (or any other type sexual contact) can be unwelcome, unwanted, and even downright frightening regardless of the intentions of the person initiating it. Indeed, this is one of the most important things you need to know about sexual harassment under Title IX: The impact on the complainant or survivor matters far more than the intent of the respondent or accused.

What one person intends to be a friendly kiss might not come across that way to the other party. How the conduct made the victim feel is extremely important. For this reason, every Title IX complaint must be taken seriously. A school or educational administration has a duty to conduct a comprehensive investigation of all complaints.

Sexual Harassment: Objective and Subjective Assessments

While the impact on the alleged victim is extremely important, it would be a misunderstanding to think that the complainant gets the sole discretion to determine whether conduct qualifies as sexual harassment. They do not. The Department of Education (DOE) is clear in how to determine whether sexual harassment occurred, and that both objective and subjective perspectives should be considered.

The subjective perspective is the alleged victim’s perspectives. How they felt about the incident and the impact that it had on them must be carefully considered. The more objective perspective is that of a neutral, outside third party. From that perspective, investigators can try to determine the credibility of the parties and whether there was a violation of an individual’s rights.

Of course, neither of these perspectives is focused on the initiator. That is because the intent of the alleged perpetrator, no matter how good natured it might have been, is simply of secondary importance. A “friendly kiss” or a “playful comment” may not be viewed that way by the person on the receiving end. A person who means well can still commit sexual harassment.

How Our Title IX Sexual Harassment Lawyer Can Help

Many students and employees do not understand their rights under Title IX. Unfortunately, for many different reasons, this can create some challenges in the legal process. As the regulations and procedures are notoriously complex, you should be ready to seek professional support. At Duffy Law, our Title IX sexual harassment attorneys have extensive experience handling a wide range of cases. When you reach out to our office, you will speak to a lawyer who is ready to:

  • Conduct a comprehensive, confidential review of the sexual harassment case
  • Listen to your story, and answer your questions, and address your concerns
  • Investigate the matter and secure important evidence
  • Guide you through the process
  • Prepare you for and accompany you to any meetings, interviews or hearings; and
  • Take the appropriate legal action to protect your rights

Sexual harassment cases are sensitive and emotionally draining, especially true when the alleged perpetrator denies any ill-intent. If you were the victim of sexual harassment that was claimed to be a “friendly kiss”, a “good natured joke,” or any other type of similar conduct, you need personalized legal representation. Duffy Law is here to help.

Call Our Connecticut Title IX Lawyer for Immediate Help

At Duffy Law, our Connecticut Title IX attorneys stand up for the rights of victims of unlawful sexual assault and harassment. We have handled hundreds of cases and we know how to navigate the process. If you have any questions about a “friendly kiss” and/or sexual harassment claims, our firm is here to help. To arrange a strictly private initial consultation with an experienced Title IX lawyer, please contact us right away. From our New Haven office, we represent clients throughout the United States.

Felice Duffy

Felice Duffy

Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.
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