Reasonable Person (Response 8/13/2020)
(1) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;
In this sentence, does “reasonable person” modify only severe, pervasive, and objectively offensive only, or the effective denial clause as well? To clarify, can an effective denial be something a reasonable person would experience, even if there is not evidence to show that the Complainant was effectively denied?
The “reasonable person” standard applies to all the elements of the second prong of the § 106.30(a) definition of “sexual harassment” including the effective denial element. See Preamble to the Rule at p. 525 (“Evaluating whether a reasonable person in the complainant’s position would deem the alleged harassment to deny a person ‘equal access’ to education protects complainants against school officials inappropriately judging how a complainant has reacted to the sexual harassment.”); pp. 525-26 (“… this provision assumes the negative educational impact of quid pro quo harassment and Clery Act/VAWA offenses included in § 106.30 and evaluates other sexual harassment based on whether a reasonable person in the complainant’s position would be effectively denied equal access to education compared to a similarly situated person who is not suffering the alleged sexual harassment.)