Client Alert – New Title IX Sexual Harassment Regulations Mandate Significant Changes to the Way Colleges and Universities Respond to Sexual Misconduct

May 13, 2020 in Client Alerts, Employment Law by walsh.law

By: Mariel Belanger

On Wednesday May 6, 2020, the U.S. Department of Education (“DOE”) issued its long awaited final Title IX regulations regarding sexual misconduct in education. The new regulations, for the first time, impose legally binding rules regarding the manner in which recipients of federal financial assistance must comply with Title IX and respond to allegations sexual harassment. As a result, the new regulations replace prior non-binding guidance issued by the DOE and differ in many important ways from the earlier guidance.

The new regulations take effect on August 14, 2020, which means colleges and universities must immediately take action to ensure their sexual harassment/sexual misconduct policies and procedures comport with the new regulatory requirements and make any necessary changes.

New Definition of “Sexual Harassment”

Most notably, the regulations define actionable “sexual harassment” to delineate what conduct triggers an institution’s Title IX obligations. Departing from its earlier guidance, the DOE declined to adopt the Title VII definition of actionable “sexual harassment’ for Title IX matters. It explained that it did not believe it appropriate to equate educational environments with workplaces because it may “chill and infringe upon the First Amendment freedoms of students, teachers, and faculty by broadening the scope of prohibited speech and expression.” Instead, the DOE chose to codify the United States Supreme Court’s narrower definition of “sexual harassment” set forth in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), an early Title IX case.

Adopting the language from Davis, the new regulations define actionable “sexual harassment” as conduct on the basis of sex that is “[u]nwelcome 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.” 34 CFR § 106.30 (emphasis added). In addition, the definition of sexual harassment expressly includes quid pro quo harassment and sexual assault, dating violence, domestic violence, and stalking, as defined in the Clery Act and the Violence Against Women Act. See id.  In light of this departure from Title VII jurisprudence, the definition of sexual harassment currently used by many institutions may be overly broad and in violation of the regulations. All definitions of sexual harassment and sexual misconduct contained in Title IX policies should be carefully vetted to ensure they comport with the new regulatory mandates.

New “Actual Knowledge” Requirement

The regulations also specify when and how an institution must respond to allegations of sexual harassment. The regulations clarify that an institution has an obligation to respond to allegations of sexual harassment only when it has “actual knowledge” of the alleged conduct. “Actual knowledge” is a defined term. An institution is deemed to possess actual knowledge only when an allegation of sexual harassment is reported to a Title IX Coordinator or to “any official of the recipient who has authority to institute corrective measures on behalf of the recipient.” 34 CFR § 106.30. Institutions should determine which employees to designate as officials with authority and subsequent Title IX reporting obligations. In light of this change, institutions may now determine which employees to designate as officials with authority and subsequent Title IX reporting obligations. They no longer have to designate virtually all employees as mandatory reporters, but can instead decide who to designate as an official with authority based upon factors such as their culture, internal structure and applicable state law concerns.

New Mandatory, Uniform Requirements for the Title IX Grievance Procedure

Once an institution has actual knowledge of an allegation of sexual harassment, the regulations require Title IX Coordinators to promptly inform complainants of supportive measures available, with or without filing a formal complaint, and to explain the process for filing a formal complaint. 34 CFR § 106.44. Where a formal complaint is filed, institutions must initiate a formal grievance process that complies with the detailed requirements set forth in the regulations. Moreover, the new grievance process requirements are uniformly applicable to all colleges and universities receiving federal financial assistance, regardless of size or whether the institution is public or private. The regulations do, however, maintain a religious organization’s ability to seek an exemption from provisions of the regulations that conflict with a specific tenet of the religious organization.

Some of the more pertinent grievance process requirements are summarized below and warrant careful assessment and consideration when revising current policies and procedures.

  • Institutions must “promptly” respond to allegations of sexual harassment and “[i]nclude reasonably prompt time frames for conclusion of the grievance process,” but the regulations are silent on what time frame will be deemed compliant.
  • When a formal complaint is filed and the grievance process initiated, an institution must provide a formal written notice to both the complainant and the respondent prior to any interview. The written notice must include “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment [], and the date and location of the alleged incident, if known.” The written notice must also “include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.” The notice must also advise the parties that they may be assisted by an advisor of their choice during the process.
  • Institutions must provide both parties an opportunity to review and inspect “any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely” and “inculpatory or exculpatory evidence whether obtained from a party or other source.” Further, prior to preparing any investigative report, an institution must provide each party with such evidence and provide the party 10 days to review it and submit a written response to be considered by the investigator in preparing a final investigation report.
  • Institutions must now provide both parties with copies of the final investigation report and provide an opportunity for each party to submit a written response.
  • Post-secondary institutions are required to provide a live hearing at the conclusion of the investigation. As a result, institutions will no longer be permitted to use the common single-investigator model, where an investigator writes a report and recommends a finding, but no hearing takes place.
  • During hearings, both the complainant and respondent must have an advisor. If a student has not selected an advisor of choice, the institution must appoint an advisor for the live hearing.
  • During the hearing an advisor must be permitted to pose questions to, and essentially cross-examine, the other party and any relevant witnesses. All questions must be submitted to the decision-maker(s) in advance for a determination as to whether they are relevant. No student is permitted to represent himself/herself, however, making clear that the parties are not permitted to personally confront one another during a hearing.
  • While hearings must be live and cross-examination must occur in real time, the parties may request to participate in the hearing in separate rooms, enabled by technology to hear one another, and institutions must grant such a request if made.
  • In assessing whether an allegation of sexual harassment violates Title IX and campus policy, colleges and universities may now decide whether they wish to apply a “preponderance of the evidence standard” or a more stringent “clear and convincing evidence” standard.
  • Institutions may hold Title IX hearings via video conference. As a result, once the regulations go into effect, institutions will not be permitted to untimely delay holding an in-person hearing, for example, due to the present global pandemic. Instead, they may be required to proceed with hearings via teleconference or risk violating the new regulations.
  • At the conclusion of a hearing, institutions must now offer an appeal opportunity to both parties. The regulations set forth three potential grounds for appeal: (1) procedural irregularity that affected the outcome, (2) newly discovered evidence that could affect the outcome, or (3) bias or a conflict of interest that affected the outcome.
  • The regulations include a broad anti-retaliation provision applicable to any participant in a Title IX investigation, proceeding or hearing.
  • There are specific training requirements for Title IX Coordinators, investigators, decision-makers, and any person that facilities any informal resolution process. Moreover, institutions are required to maintain records of all training materials for a period of seven years and make such materials publicly available on their websites.

 

The new regulations are poised to change the landscape of sexual misconduct investigations and proceedings at institutions across the Country and pose some serious challenges for administrators attempting to implement the new regulatory requirements by the August 14, 2020 deadline. The need to update existing Title IX policies and to provide training on the new requirements by early August should become an immediate priority for federal funding recipients.

For more information, please contact Tricia B. O’Reilly at (973)757-1104 or [email protected], M. Trevor Lyons at (973)757-1014 or [email protected], or Mariel Belanger at (973)757-1039 or [email protected].