New Title IX Regs – Eight Weeks to Implementation: Key Definitions

Legal Alert

As the Title IX regulation implementation date—August 14, 2020—looms ever closer, it’s important to understand some of the key definitions in the Final Rule and their practical effects. These revised definitions should guide your Title IX policy revisions.

Key Definitions – What You Need to Know

Jurisdictional Definitions
The new regulations clarify that matters only fall under the jurisdiction of Title IX if the harassing conduct takes place against a person in the United States within the institution’s “education program or activity.” An institution’s “education program or activity” includes (1) all on-campus operations, (2) buildings owned or controlled by recognized student organizations, and (3) off-campus locations, events, or circumstances in which the institution exercised “substantial control” over the harasser and the context in which the harassment took place. An institution may choose to address harassing conduct that takes place outside of its “education program or activity,” but Title IX does not require that it do so.

Sexual Harassment
The regulations now contain an express definition of sexual harassment. Sexual harassment is defined to mean conduct “on the basis of sex” that satisfies one or more of the following: (1) an employee of the institution conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an education program or activity; or (3) sexual assault, dating violence, domestic violence, or stalking, as those terms are defined in the Clery Act, as amended by the Violence Against Women Act.

Actual Knowledge
An institution’s obligation to respond under Title IX is triggered when it has “actual knowledge” of an allegation of sexual harassment in an education program or activity. For all institutions, notice (by any means) to the Title IX Coordinator or to any school official who “has authority to institute corrective measures” conveys “actual knowledge” to the institution and triggers its response obligations. In addition, in elementary and secondary schools, notice to “any employee” triggers the school’s response obligations. “Notice” means that the school official witnessed sexual harassment, heard allegations of sexual harassment, or received a written or verbal complaint.

Formal Complaint
A formal complaint is a document (hard copy or electronic) that is signed by the complainant or Title IX Coordinator that alleges sexual harassment and requests that the institution investigate. Although an institution must respond to all reports of sexual harassment for which it has “actual knowledge,” the institution is not obligated to initiate the grievance process unless it receives a “formal complaint.” Also keep in mind that the complainant must be participating in or attempting to participate in the institution’s “education program or activity” at the time of filing the formal complaint to trigger the grievance process.

Grievance Process
The “grievance process” refers broadly to the investigation, live hearing, and appeal process triggered by a formal complaint. The new regulations prohibit the investigator and decision-maker in the grievance process from being the same person and requires that higher education institutions hold a live hearing with cross-examination. We will discuss the requirements of the grievance process in future alerts.

Supportive Measures
The new regulations require that the Title IX Coordinator promptly contact a complainant to discuss the availability of “supportive measures,” with or without the filing of a formal complaint. Supportive measures are free, non-punitive services to protect safety, deter sexual harassment, and restore or preserve equal access to the education program or activity without unreasonably burdening the responding party. Examples of supportive measures are counseling, course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, and increased campus security. Institutions may also offer supportive measures to respondents to assist them in navigating the grievance process and to ensure equitable treatment during the grievance process.

Key Definitions – What You Need to Do

  1. Determine what off-campus events and locations might be deemed an “education program or activity.” Review any organizations and events that your institution funds, promotes, or sponsors to determine potential Title IX coverage.
  2. Ensure that Title IX personnel receive training about the scope of your institution’s “education program and activities” so they can accurately identify situations that require a response. The new regulations require this training.
  3. Review and update your policy’s definition of “sexual harassment.”
  4. For postsecondary institutions, clearly document who has authority to “institute corrective measures” and who must, may, or must only with a student’s consent report sexual harassment to the Title IX Coordinator (which will trigger a response obligation).
  5. Assess availability of supportive measures and ensure the Title IX Coordinator receives training on supportive measures.

This is the second in a series of alerts regarding the new Title IX regulations. We will address other big picture changes, and their practical effects, in the coming weeks.

Media Contact

Jamie Moss (newsPRos)
Media Relations
w. 201.493.1027 c. 201.788.0142

Mac Borkgren
Senior Manager, Marketing Communications & Operations

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