More Than Sports: Managing New Title IX Compliance Complexities
This article was originally published on Corporate Compliance Insights and is reprinted here with permission.
Title IX of the Education Amendments of 1972 is the most important federal law dedicated to gender equality in programs offered at schools, colleges and universities that receive federal money. The U.S. Department of Education’s Office of Civil Rights (OCR) is the principal enforcer of the law, and priorities for enforcement have varied between presidential administrations.
Title IX Enforcement Priorities Vary Under Different Presidential Administrations
These priorities may include access to higher education, athletics, career training and education, education for pregnant and parenting students, employment, the learning environment, math and science education, sexual harassment, standardized testing and technology. Between 2011 and 2020, competing interpretations of the law issued by the Obama and Trump administrations resulted in federal requirements to invest in internal infrastructure and personnel to prevent, detect and report harassment and sexual assault and to adjudicate sexual harassment and sexual assault claims fairly. Since 2011, the conceptual and tangible requirements for comprehensive and inclusive approaches to equal educational environments have evolved.
New Changes to Title IX Requirements
In May, OCR is expected to release a new proposed rule aimed at some of the changes to Title IX requirements adopted as recently as August 2020 as well as introduce requirements arising from evidence adduced about safe and equal educational facilities, institutions and environments since 2011. Those changes include, broadly, approaches to addressing sex-based harassment, providing inclusive environments for those pregnant and parenting in educational settings, and related changes in personnel and procedures to ensure that the aforementioned changes are effectively implemented.
Sex-based Harassment
Over time, the legal acknowledgment of conduct that arises to sexual harassment — itself a concept anchored in civil rights law that predated Title IX — has expanded, and the proposed rule sets forth a reformulation of that conduct and corresponding requirements for addressing it. In addition to sexual harassment as it was codified under the Obama and Trump administrations, the proposed rule covers harassment on the basis of sex, sex stereotypes, sex characteristics, sexual orientation, gender identity, pregnancy or parenting status and any related conditions whether or not the harassment is sexual in nature. The proposed rule addressing “sex-based harassment” therefore includes but is not limited to sexual harassment. It further elaborates on what conduct is, or is tantamount to, retaliation for bringing claims of sex-based harassment and what constitutes a hostile environment.
