Reasonable Person (Response 8/13/2020)

Reasonable Person
Question:

(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?

Answer:

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.)