Title IX Final Regulation
Effective August 14, 2020
Where to Begin
Inventory
Implementation Plan

Title IX Coordinator Training Online Course: Fundamentals of the August 2020 Regulatory Requirements
Module 1: Jurisdiction and Other Threshold Topics

Amy C. Foerster, Partner, Troutman Pepper Hamilton Sanders LLP
Melinda Grier, Melinda Grier Consulting PC
Janet P. Judge, Partner, Holland & Knight LLP

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Course Overview
Jurisdiction and Other Threshold Topics
Formal Complaints, Investigations, and Grievance Procedures
Policy and Training Obligations

WHAT?

PLAN & DOCUMENT YOUR EFFORTS

Inventory
Current Title IX Procedures
Clery Act Policies & Compliance
Student Conduct Code
HR Policies & Agreements
State or Local Laws or Regulations

Implementation Plan
What?
Who?
When?

Jurisdiction: What, Who, Where, When, How?

HOSTILE ENVIRONMENT
Unwelcome sexual conduct
“So severe, pervasive, and objectively offensive” (2020)
Pattern or practice or sustained and non‐trivial (2001)
“Effectively denies equal access”
Denies or limits a student’s ability to participate in or benefit from (2001)
Interferes with or limits a student’s ability to participate or benefit from (2011)
“Determined by a reasonable person”
“[S]tanding in the shoes of the complainant.” (Preamble, p. 514)

DEFINITION OF SEXUAL HARASSMENT
§106.30(a): Sexual Harassment to include one or more of the following:
Quid Pro Quo
Hostile Environment
Clery Definitions

QUID PRO QUO
Conditioning provision of an aid, benefit, or service on participation in unwelcome sexual conduct
Carried out by an employee

WHO?

CLERY DEFINITIONS
Sexual Assault – a forcible or non‐forcible sex offense under the FBI UCRS (as defined by the Clery statute)
Rape, attempted rape, sodomy, fondling, statutory rape
Dating Violence – violence by a person who is or has been in a romantic or intimate relationship (Clery statute)
Domestic Violence – violence by a current or former spouse or intimate partner, co‐parent, living partner, youth or other under state law
Stalking – fear for safety or safety of other or suffer substantial emotional distress

COMPARE TO
Institution Conduct Code
Court standards
Title VII
State law

OTHER CHANGES
Requires IHEs to handle allegations by employees, including at‐will employees, using the same procedures it uses for students
Independent contractors and volunteers are not considered employees who may create quid pro quo Title IX liability.
Actions by non‐employees may create liability for other types of sexual harassment. (Preamble p. 448)
Volunteers who experience discrimination may be covered. (Preamble p. 1544)

IN ADDITION TO STUDENTS…APPLIES TO EMPLOYEES
§106.51 Employment

“No person shall, on the basis of sex, be excluded from participation in, or denied benefits of, or be subjected to discrimination in employment….”
Remains unchanged by current amendments

WHAT’S NEW THEN…
2011 Guidance directed at student‐on‐student sexual violence

Courts and OCR have relied on Title VII when considering employees’ complaints alleging sexual harassment even under Title IX.

OCR acknowledges differences, expects institutions of higher education (IHEs) to comply with both Title IX and Title VII requirements.
OCR will try to “avoid an actual conflict” regarding employer’s obligations. (Preamble p. 1511.)

TITLE VII – SEXUAL HARASSMENT DEFINITION
Conduct
Unwelcome sexual advances
Requests for sexual favors
Other verbal or physical conduct of a sexual nature

Viewed by a reasonable person in the Complainant’s position

WHEN…
Submission becomes a term or condition of employment

Rejection is used as the basis for an employment decision

The conduct unreasonably interferes with work performance or creates a hostile, intimidating or offensive environment

EMPLOYEE‐EMPLOYEE HARASSMENT
Employer’s knowledge
Knew or should have known
Immediate and appropriate corrective action
Reasonably calculated to end the harassment and prevent recurrence
Actions by third parties

SUPERVISOR LIABILITY
Tangible Employment Action
Strict liability
No tangible employment action
Employer takes reasonable care to prevent and correct promptly
and
Employee unreasonably failed to use employer’s preventive or corrective options

INSTITUTIONAL REQUIREMENTS

Contractual Obligations
Collective bargaining agreements
Employee handbooks
Individual employee contracts

OTHER LEGAL REQUIREMENTS
Conflicting state requirements
State laws
State administrative rules and regulations

Choice of IHE to accept federal funding

JURISDICTION
No distinction between on‐ or off‐campus
If in a location, at an event, or in circumstances that meet the definition

Only in the United States
Harassment must occur against a person in the United States
Study abroad & foreign employment

OTHER ISSUES
Procedures
Serial or parallel
Clearly identify what applies to employees
Student employees
Clery obligations to employees
Notification to all employees and applicants (§106.8)

WHERE?

WHEN?

BUT DON’T FORGET…
May apply other institutional conduct standards and procedures

Clery applies to students and employees regardless of location.

Title VII applies to U.S. citizens working for U.S. corporations abroad.

EDUCATION PROGRAM OR ACTIVITY
§106.44(a): Locations, events, or circumstances over which IHE exercises substantial control over both the respondent and the context in which the sexual harassment occurred
Any building owned or controlled by a recognized student organization
Training on the scope of the institution program or activity

IMPLEMENTATION ISSUES
Institutions determine who is OWA
Institutions decide who must, may or may only with a student’s consent report sexual harassment.
Make a list of who has authority
Need not give notice of all OWAs only Title IX Coordinator information
Responsible employees
No longer in regulations
Institutions now may want to re‐conceptualize if or how they will designate.
May require employees to inform IHE
Resident Assistants

ACTUAL KNOWLEDGE
§106.30 (a): Notice to Title IX Coordinator or any official who has authority to institute corrective measures

Sexual harassment or allegations of sexual harassment

No vicarious liability, constructive notice or “should have known”

OFFICIAL WITH AUTHORITY
Authority to institute corrective measures
Not an official with authority (OWA)
An official with only the ability or obligation to report
An official with only the ability or obligation to inform student about how to report
An official having been trained to report or inform students how to report
Respondents are not OWAs

RETALIATION §106.71(a)
No retaliation by any person to interfere with any right “secured by Title IX”
No retaliation for
Making a report or complaint
Participating or refusing to participate
Filing charges regarding conduct that arises out of the “same facts or circumstances” but does not involve sex discrimination

CONFIDENTIALITY
IHEs must keep confidential the identity of any individual
Who has made a report or filed a complaint
Who has been reported as a perpetrator
Who has been a witness
Exceptions
FERPA
Legal obligations
Carry out the purposes of these regulations

RETALIATION AGAINST EMPLOYEES
Future employment decisions

Employment references

Licensing Boards

HOW?

THE INITIAL REPORT
Anyone may report
Not automatically a formal complaint

Institution response to notice
Offer of supportive measures
Explanation of formal complaint process
Compare to Clery

MAKING REPORTS
Who
Any individual
alleged to be the victim of conduct that could be sexual harassment
Distinguish from Formal Complaint
Against Whom
Any individual
Reported as perpetrator of conduct that could be sexual harassment
Distinguish from Formal Complaint

INSTITUTION RESPONSE
Promptly contact the Complainant to discuss the availability of supportive measures
Consider complainant’s wishes
Make clear available with or without formal complaint
Explain the process for filing a formal complaint
Treat complainants and respondents equitably
Consider Clery obligations

SUPPORTIVE MEASURES §106.30(a)
Non‐disciplinary, non‐punitive individualized services
Impose actions that are disciplinary sanction or not supportive measure only after a grievance process

Appropriate, reasonably available, free to complainant or respondent

Restore equal access without unreasonably burdening the other party

Confidential, if possible

EMERGENCY REMOVALS §106.44(c)
May remove respondent from education program or activity if:
Conduct an individualized safety and risk analysis,
Determine that respondent poses an immediate [imminent] threat to the physical health or safety of anyone justifying removal,
The threat arises from the allegations of sexual harassment, and
Provide opportunity for respondent to challenge removal immediately thereafter.

BUT…
This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the American with Disabilities Act.
Review disability policies regarding danger to self or others

EMERGENCY REMOVALS
Other Points to Consider:
Not limited to instances of sexual assault
Who will conduct the assessment and make the decision?
Beyond verbalized threats, what information will be considered?
Institution can determine the scope of removal.
No specific timeframes – may (not required to) reassess
What will respondent’s ability to challenge it look like?
Separate from non‐student employee Administrative Leave

Note
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The transmission of information in this presentation does not establish an attorney‐ client relationship with the recipient. The recipient should not act on the information contained in this presentation without first consulting retained legal counsel.

If you desire legal advice for a particular situation, you should consult an attorney.