The U.S. Department of Education has issued its long-awaited final Title IX regulations (“Final Rule”), providing guidance to schools, colleges and universities. In particular, the Final Rule clarifies Title IX protections for both students and employees by, among other things, increasing posting requirements, making Title IX Coordinators more accessible, defining sexual harassment, implementing a “deliberately indifferent” standard for purposes of enforcement, requiring that postsecondary institutions have “actual knowledge” of sexual harassment, and modifying due process requirements. These protections conceivably bolster the rights of those accused of sexual harassment, as opposed to victims.
The Final Rule goes into effect on August 14, 2020. Below is a summary of several key provisions of the final regulations. Readers are encouraged to review the Final Rule for all changes.
1. Title IX Applicability. As applicable to this discussion, Title IX prohibits sexual harassment in educational institutions and their “programs or activities” receiving federal funding. This includes private colleges and universities whose students receive federal student loans. Independent K-12 schools may have also recently come under the auspices of Title IX by accepting Paycheck Protection Plan (“PPP”) loans under the CARES Act. “Programs or activities” is broadly defined to include locations, events, circumstances, context and people over which the school exercised substantial control when the sexual harassment occurred. It includes any building owned or controlled by an officially recognized student organization (such as a fraternity), as well as both on-campus and off-campus programs and activities. The Final Rules specifies that Title IX protects both students and employees. The latter is a substantial change. Prior to the Final Rule, Title IX and its regulations were silent on the issue of employees, leaving a split among the courts. The Final Rule eliminates any question in that regard, and creates a significantly increased burden on an institution investigating an employment-related claim of sexual harassment.
2. Definition of Sexual Harassment. The Final Rule defines sexual harassment as (i) any instance of quid pro quo harassment by a school’s employee, (ii) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; and (iii) any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act. The regulations clarify that quid pro quo harassment and sexual assault, dating violence, domestic violence, or stalking are not evaluated for severity, pervasiveness, offensiveness, or denial of equal education access, because such misconduct is sufficiently serious to deprive a person of equal access in and of itself. The regulations acknowledge First Amendment considerations, such as free speech and expression, and require that, where such rights are implicated, the school must balance Title IX enforcement with respect for free speech and academic freedom.
3. Actual Knowledge Requirement. Under the Final Rule, it is no longer sufficient that a school “should have known” about sexual harassment. The Final Rule specifies that schools must have “actual knowledge” of sexual harassment to trigger a response, and, in plain language, rejects the notion of constructive notice and vicarious liability. What constitutes “actual knowledge” varies depending of the type of institution. In the K-12 school setting, “actual knowledge” is satisfied if any employee has notice of sexual harassment (or allegations of the same). For postsecondary institutions, “actual knowledge” is only satisfied where either the Title IX Coordinator or an official with authority to institute corrective measures has notice of sexual harassment. Notice can be provided by any means and by anyone. Further, the Final Rule instructs Title IX Coordinators, despite receiving notice, to respect a complainant’s request not to conduct an investigation. In such a case, the Title IX Coordinator may only sign a formal complaint (which prompts the investigation) if he or she first determines that doing so over the complainant’s wishes is not clearly unreasonable in light of the known circumstances.
4. Response Obligations and the “Deliberate Indifference” Standard. Schools must respond promptly to notice of sexual harassment in a manner that is “not deliberately indifferent.” According to the regulations, a response is “deliberately indifferent” if it is “clearly unreasonable in light of the known circumstances.” The regulations also list certain mandatory response obligations, such as supportive measures. Supportive measures, which should be offered even if a formal complaint is not made, must be tailored to the situation, offered free of charge, and confidential. Supportive measures may include counseling, course adjustments, leaves of absence, modification to housing or work areas, increased security, and monitoring.
5. Reporting and Due Process
- Accessible Reporting: Schools must ensure that their educational community knows how to report to the Title IX Coordinator, including by designating a Title IX Coordinator, notifying students and employees, including applicants for admission and employment, parents or legal guardians, and all unions, of the Title IX Coordinator’s contact information, and allowing persons to report sex discrimination or harassment in-person using multiple means.
- Grievance Process: All schools and postsecondary institutions must implement and maintain a written, consistent and transparent grievance process for resolving formal complaints of sexual harassment. Among other things, the grievance process must treat complainants and respondents equitably, include a statement that the accused is presumed not to be responsible for the alleged conduct until a determination is made, require objective evaluation of all relevant evidence, and design remedies to maintain the alleged victim’s equal access to education. The Final Rule specifies that emergency measures to remove the accused from the environment may be taken if an individualized safety and risk assessment determines that there is an immediate safety threat. In such a case, notice must be provided, and the individual must be given a means by which to challenge the decision immediately after removal. The Final Rule also protects the institution’s right to place a non-student employee on administrative leave pending investigation.
- Investigations: Upon receipt of a formal complaint, schools must send written notice to both the complainant and the respondent of the allegations and conduct an investigation. Among other things, schools must: include an equal opportunity for the parties to present evidence, including fact and expert witnesses; send written notice of any investigative interviews, meetings, or hearings; and send to all the parties (and their advisors) evidence directly related to the allegations.
- Hearings: Postsecondary institutions (but not K-12 schools, where it is optional) must provide an evidentiary hearing, which must be conducted live and in-person and allow for cross-examination. Each party is entitled to representation, which the institution must provide at the institution’s expense where necessary. During any such hearing, the Final Rule provides “rape shield protections” for alleged victims, making questions and evidence about a his/her prior sexual behavior irrelevant, unless offered to prove that someone other than the accused committed the alleged misconduct or to prove consent.
- Standard of Evidence & Written Determination: The Final Rule requires that the school’s grievance process state whether the standard to substantiate allegations of sexual harassment is by a “preponderance of the evidence” or “clear and convincing evidence.” Once a school adopts either standard, the same standard of evidence must be used for all formal complaints of sexual harassment, regardless of whether the accused is a student or an employee. The Final Rule also requires that the decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) issue a written determination that must include, among other things, findings of fact and any disciplinary measures that should be imposed.
- Appeals: Schools must offer both parties the opportunity to appeal a determination, including a determination regarding responsibility, dismissal of a formal complaint or any of the allegations, and any “procedural irregularity” that affected the outcome.
- Informal Resolution: Schools, in their discretion, may choose to offer and facilitate informal resolution of complaints, including through mediation or restorative justice, so long as both parties give voluntary, informed, and written consent to attempt informal resolution. Importantly, an informal resolution process is not permitted to resolve allegations that an employee sexually harassed a student.
Bottom Line: The Final Rule takes effect just days before the 2020-2021 academic year begins. All educational institutions in receipt of federal funds, including those who have received PPP loans, should take the time now to ensure that Title IX Coordinators are appointed and properly trained, and that Title IX policies are up to date, comply with the Final Rule, and are ready for distribution. Institutions should take specific note of how this may affect investigations of employment-related sexual harassment and how to avoid Title IX employment claims since such claims may be significantly easier to raise given the lack of the administrative exhaustion requirements as compared to Title VII claims, and the significantly expanded statute of limitations.
If you have any questions regarding this Alert, please contact the authors, Bran Noonan, partner in our New York City and Berkeley Heights offices at bnoonan@fordharrison.com, Johanna Zelman, partner in our Hartford and New York City offices, at jzelman@fordharrison.com, and Mohammad Shihabi, counsel in our New York City office at mshihabi@fordharrison.com. Of course, you may also contact the FordHarrison attorney with whom you usually work.
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