Updated Title IX Rules: Analysis of the Definition of “Sexual Harassment”

Saul Ewing Arnstein & Lehr LLP

Saul Ewing Arnstein & Lehr LLP

The Department of Education (“Department”) redefined “sexual harassment” for Title IX purposes insomuch as the Final Rule narrowed the scope by requiring that unwelcome conduct be severe and pervasive and objectively offensive (one alone no longer suffices) in a manner that effectively denies an individual access to a school’s education program or activity. However, the Final Rule simultaneously broadened the scope of covered actions to now include dating violence, domestic violence and stalking.

Definition of “Sexual Harassment”

Most notably, the final regulations redefine sexual harassment under Title IX to include the following three categories:

  1. Quid Pro Quo Harassment: instances where a school employee conditions education benefits on participation in unwelcome sexual conduct; or
  2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denied a person equal access to the school’s education program or activity; or
  3. Sexual assault, as defined in the Clery Act, 20 U.S.C. § 1092(f), and dating violence, domestic violence, or stalking as defined in the Violence Against Women Act, 34 U.S.C. § 12291(a).

What Does this Mean?

The Department has revised the definition of sexual harassment by specifying that the elements in the Davis standard (severe, pervasive, objectively offensive, and denial of equal access) are determined under a reasonable person standard. The other categories (quid pro quo, sexual assault, and three other Clery Act/VAWA offenses) do not require the same elements of severity, pervasiveness, or objective offensiveness. Another important change from the proposed rule-making is the move of the phrase “on the basis of sex” from the second prong to the introductory sentence – meaning it now applies to all prongs. The Department does not define “sex” in the final regulations because the focus is on prohibited conduct, namely sexual harassment as a form of sex discrimination. The Department has also clarified that “unwelcome” is a subjective element. Harassment can be physical or verbal (when it is serious enough to warrant the label “abuse”).

Institutions will need to review and update their definition of “sexual harassment” in their Title IX policies and ensure consistency with the newly adapted definition.

Factors to Consider for “Sexual Harassment”

To determine if conduct qualifies as “sexual harassment” there are a number of factors that an institution may consider. The elements of severity, pervasiveness, and objective offensiveness must be evaluated in light of the known circumstances and depend on the facts of each situation, but must be determined from the perspective of a reasonable person standing in the shoes of the complainant. The Davis standard does not require an “intent” element. In other words, unwelcome conduct that is so severe, pervasive, and objectively offensive that it denies a person equal educational opportunity is actionable sexual harassment regardless of the respondent’s intent to cause harm. The Department explicitly rejected a “should have known” standard because, in the Department’s view, it creates a negative incentive for Title IX Coordinators and officials with authority to inquire about possible sexual harassment in ways that invade the privacy and autonomy of students and employees. The burden to describe or prove elements does not fall on complainants, but rather on recipients to evaluate reports of sexual harassment using their common sense.

The Department further clarified that sexual exploitation constitutes sexual harassment, and grooming behaviors could constitute sexual harassment. The Department indicated that institutions may publish a list of situations that a recipient has found to meet the section 106.30 definition of sexual harassment to advise potential victims and potential perpetrators.

Pure Speech May Be Sexual Harassment

Expressive speech (with or without physical conduct) may also amount to sexual harassment, but the concepts of overbreadth and prior restraints shall apply. Severity and pervasiveness are necessary elements to ensure that Title IX’s nondiscrimination mandate does not punish verbal conduct in a manner that chills and restricts speech and academic freedom. Similarly, an institution should not impose prior restraints on students’ and employees’ ability to discuss the allegations under investigation. Institutions should review their First Amendment and academic freedom policies to ensure there are no contradictions between them and their Title IX policy.

Rationale for the Revised Definition

The Department identified the following reasons for revising the definition of sexual harassment: (1) to help prevent infringement of First Amendment freedoms; (2) to clarify confusion by precisely defining sexual violence independent from the Davis definition; (3) to clarify the intersection among Title IX, the Clery Act, and VAWA with respect to sex-based offenses; and (4) to ensure that recipients respond to students and employees victimized by sexual harassment that jeopardize a person’s equal educational access.

What if the Definition of Sexual Harassment is Not Satisfied?

Institutions may continue to address harassing conduct that does not meet the Section 106.30 definition of sexual harassment as acknowledged in Section 106.45(b)(4)(i).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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