Schools that have been anxiously awaiting the U.S. Department of Education’s final regulations enforcing and interpreting Title IX need wait no longer. The department issued final regulations last week that will govern sex discrimination complaints relating to conduct that occurs after Aug. 1, 2024. The new regulations include significant changes from prior Title IX regulations issued in 2020.
The final regulations, among other changes, raise the bar for schools’ compliance, change the definition of sexual harassment, expand protections for LGBTQ+ and pregnant students and give schools more flexibility in resolving complaints, including by ending the current requirement that colleges and universities hold live hearings with an opportunity for cross-examination.
Expanded Protections for Sex Discrimination
The final regulations impose a higher standard on educational institutions than the 2020 regulations. Previously, a school was required to respond to sex discrimination in a way that was not “deliberately indifferent.” Under the new regulations, a school must “respond promptly and effectively” whenever it has “knowledge of conduct that reasonably may constitute sex discrimination.” The new regulations expressly include sexual orientation and gender identity as protected categories that fall within the definition of discrimination “on the basis of sex.”
The new regulations also expressly prohibit discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions or recovery. Importantly, an institution’s obligations go beyond non-discrimination and require affirmative accommodations such as those seen under the new Pregnant Workers Fairness Act, such as reasonable break time for lactation and a clean, private lactation space for both students and employees that is not a bathroom.
Finally, a new definition of sexual harassment may open the door for more claims to fall under the jurisdiction of Title IX. Under current regulations, the standard for sexual harassment is conduct that is “severe, pervasive and objectively offensive.” Under the new regulations, a hostile environment exists when, based on the totality of the circumstances, conduct is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.
Expanded Geographic Scope
Colleges and universities must now address conduct that occurs off-campus or outside the country — both of which are largely outside institutions’ jurisdiction under the current rules. Under the new regulations, an institution should not focus on where the alleged misconduct happened “but rather on whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred.” Both in-person and online harassment are barred, and the final regulations also permit schools to consider conduct that occurs outside an institution’s educational program or activity, if that conduct is a contributing factor in a purported hostile educational environment. An institution is still not required, however, to respond independently to conduct that occurred outside the educational program or activity.
Increased Flexibility for Investigation and Resolution
The final regulations allow schools more discretion and flexibility with respect to the investigation and resolution of Title IX complaints. They do away with the prior prohibition of a single-investigator model and once again will allow an investigator and decision-maker to be the same person. The final regulations also eliminate the requirement of a live hearing and cross-examination at colleges and universities, although schools are still able to hold hearings if they wish. In addition, a school may now offer an informal resolution process upon receipt of a complaint or when it has information about conduct that reasonably may constitute sex discrimination, regardless of whether a complaint is initiated.
There are numerous other changes contained in the more than 1,500 pages of regulations and guidance, and educational institutions have a few months to decide how they want to apply the flexibility given to them under the new regulations, update their policies, implement new procedures and train staff to achieve compliance by the next academic year. The Department of Education has shared a resource for drafting policies, notices of investigation and grievance procedures, but there is still much work to be done.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
[View source.]
