Tuesday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new, anticipated guidance concerning the Department’s current regulations related to sexual harassment. The guidance, titled Questions and Answers on the Title IX Regulations on Sexual Harassment, clarifies how OCR interprets schools’ existing obligations under the 2020 amendments. The Q&A addresses 67 questions covering a variety of topics ranging from general obligations under Title IX, sexual harassment, formal complaints, and participation in the grievance process to supportive measures, time frames, live hearings, informal resolution, and retaliation. The Q&A also includes an appendix containing example policy provisions addressing particular regulatory requirements.
While OCR is reviewing the 2020 amendments to the Title IX regulations and contemplating revisions, the Q&A confirms that until any new regulations go into effect, the 2020 amendments remain in place. The Q&A reflects OCR’s interpretation of those regulations and largely relies on language in the preamble to the 2020 amendments when answering the various questions posed. Remember that neither the Q&A nor the preamble have the force of law–but they can be helpful in interpreting the regulations, which do. If you’ve been following along with our firm’s Title IX trainings and Title IX Insights blog posts, you’ll notice that the new guidance aligns with our interpretation on these topics. So while the Q&A does not include any bombshells, it can be used as a helpful reference point to understand and apply the 2020 Title IX regulations. We’ve highlighted some topics from the Q&A below to keep in mind as your institution addresses various Title IX issues:
Along with the Q&A, OCR also published a transcript of the public hearing held in June 2021 on Title IX, which includes comments from over 280 stakeholders on issues of sexual harassment and sexual violence, fair and equitable resolution of reports of sexual misconduct, and addressing discrimination based on sexual orientation and gender identity.