What is Title IX?
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. All recipients of federal financial assistance must comply with the Title IX implementing regulations. Sexual harassment should always be understood to include sexual violence. This view was expressly affirmed by the Department of Education in its April 4, 2011, “Dear Colleague Letter” reiterating that Title IX’s prohibitions against sexual harassment also cover sexual violence and that schools must “take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX.”
The Department of Education’s Office of Civil Rights broadly defined sexual violence to mean “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” The Department of Education added, “An individual also may be unable to give consent due to an intellectual or other disability.” Sexual violence includes, but is not limited to, rape, sexual assault, forcible fondling, and sexual coercion or intimidation. The offenses of stalking, dating violence, and domestic violence are included as “Clery crimes” under the Clery Act, as amended by the 2013 Reauthorization of the Violence Against Women Act and must be counted for inclusion in the University’s Annual Security Report. Additionally, under the Act, those offenses must be also decided using the “preponderance of the evidence standard” in student conduct proceedings. Title IX requires institutions to respond to those offenses if perpetrated against a complainant based on their sex.
The Department of Education lays out specific Title IX requirements for responding to sexual harassment/sexual violence. These guidelines are comprehensive and must be reviewed annually to ensure compliance. In general, the broad themes offered by the Department of Education include:
- If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
- A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
- A school’s grievance procedure must provide for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
- A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
- A school must notify both parties, simultaneously, of each outcome of the complaint.
The Department of Education’s Office of Civil Rights applies the “reasonableness” test for determining when a school must respond to a possible incident of sexual violence. That is, if a school “knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.” Moreover, when investigating whether sexual violence has occurred, the Department of Education instructs schools to apply the legal standard of “preponderance of the evidence,” discarding the heightened “clear and convincing” standard previously utilized by some schools. (This standard is in keeping with the burden of proof required for establishing a prima facie case of discrimination under Title VII).
In the Department of Education’s view, a school is expected to act once it has reasonable knowledge of possible sexual harassment/sexual violence whether or not the victim has filed a complaint. In addition, a law enforcement investigation does not relieve the school of its independent obligation to investigate the alleged conduct. Rather, the Department advises schools to conduct an investigation irrespective of parallel investigations undertaken by other agencies, including local law enforcement.
All employment activities and decisions on behalf of the educational agency must not limit, segregate, or classify applicants in any way that could adversely affect any applicant’s or employee’s opportunities because of sex. In terms of compliance with Title IX, as well as Title VII, sex-based discrimination is prohibited in recruitment, advertising, application processes, hiring, upgrading or promoting, consideration for tenure, demotion, transfer, layoff, termination, the application of policy, right of return from layoff, and re-hiring. Rates of pay or other compensation, changes in compensation, job assignments, classifications, positions, seniority, fringe benefits available, including pension plans, and even the terms of collective bargaining are subject to Title IX regulations (as are they under Title VII). All policies related to leaves of absence, pregnancy leave, childbirth leave, and leave to care for children or dependents must be the same for employees of either sex.
Title IX also extends to selection and financial support for training, professional meetings, conferences, tuition assistance, sabbaticals, leaves to pursue training, employer-sponsored events (including social or recreational), and any term, condition, or privilege of employment. The institution shall not use any test or other criterion for employment that disproportionately has an adverse effect of persons on the basis of sex and shall not apply any policy or take any employment action on the basis of marital, parental, or family status. The institution has the obligation to implement specific and continuing steps to notify all applicants for employment that it does not discriminate on the basis of sex.