Earlier this morning, the Department of Education Office for Civil Rights released its long-awaited final Title IX regulations on sexual harassment. These new regulations, which replace the 2020 rules, will take effect on August 1, 2024. Until then, the 2020 rules continue to be in effect.
The release of the final 2024 Title IX rules on sexual harassment caps nearly two years of the rule-making process. As expected, the new regulations mark a significant departure from the 2020 Title IX regulations with respect to how institutions should respond to complaints of sex-based harassment. While we are continuing to review the new rules and will provide a fuller analysis in the coming days, some of the major changes in the new Title IX rules include:
- Clarifying that Title IX’s protections against sex discrimination cover sexual orientation, gender identity, sex stereotypes, sex characteristics, pregnancy or related conditions, and parental, family, or marital status.
- Replacing the 2020 definition of Title IX Sexual Harassment (“severe, pervasive, and objectively offensive”) with the broader Title VII definition (“severe or pervasive”).
- Clarifying that schools have an obligation to address sex-based hostile environment in an education program or activity even when a portion of the alleged conduct occurred outside the education program or activity or outside the U.S.
- Making the live hearing and cross-examination requirement optional for postsecondary institutions.
- Requiring institutions to provide supportive measures to students and employees affected by any type of sex discrimination, including but not limited to sexual harassment.
- Requiring annual Title IX training for all employees and additional training for Title IX team members.
- Expanding the rights of students and employees who are pregnant or have pregnancy-related conditions.
As we noted in a previous alert, the new rules do not address transgender athlete participation, which will be covered in a separate Title IX rule that will likely not be released until after the presidential election.
The unofficial version of the final rule has been published here (note that the actual text of the rule begins on p. 1505). The Department of Education has also released a 5-page fact sheet overview, a summary of the major provisions, and a resource for drafting policies, notices, and grievance procedures under the 2024 regulations.
A full analysis of the new changes and a complimentary webinar will follow – stay tuned for more details.
