What is the impact of the narrowed definition of “sexual harassment” under the new Title IX regulations?

One of several controversial revisions to the new Title IX regulations issued by the Department of Education (DOE) is the change to the definition of “sexual harassment.” The regulations significantly narrow the scope of Title IX’s definition of sexual harassment, making it less expansive than the workplace standard for sexual harassment under Title VII and related state anti-discrimination laws.  The DOE has justified this dramatic redefinition of sexual harassment based on concerns that Title IX enforcement has been overbroad and, as a result, has applied to conduct that may implicate free speech and academic freedom concerns.  The DOE also supports the revisions by claiming that they clarify and provide more explicit guidance to schools about what conduct constitutes sexual harassment for Title IX purposes.  The new regulations may provide more clarity in the most egregious circumstances involving quid pro quo sexual harassment and conduct that constitutes sexual assault, dating violence, domestic violence, or stalking under the Clery Act (the federal law requiring United States colleges and universities to disclose information about crime on and around their campuses).  However, the revised definition raises serious questions for complainants about whether other conduct—such as some forms of physical contact, verbal sexual harassment, or gender-based (non-sexual) or LGBTQ-based harassment—will be prohibited under Title IX.

Definition of Sexual Harassment Under Prior Law

Under prior guidance, the DOE defined sexual harassment as “[c]onduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.”  This definition broadly included a variety of conduct that could interfere in a student’s ability to participate in school, ranging from physical conduct such as rape, groping, and other nonconsensual sexual contact to verbal harassment.

Subsequent to this guidance, in 1998, the Supreme Court issued a pair of decisions, Gebser v. Lago Vista Independent School District, (teacher-to-student harassment) and Davis v. Monroe County Board of Education, (student peer-to-peer harassment), which held that schools can not be held liable for monetary damages unless an official who has authority to address the harassment has actual knowledge of the harassment and is deliberately indifferent in responding to the harassment.  In Gebser, the Supreme Court concluded the school district was not liable for money damages arising from teacher’s improper sexual relationship with a student because the district did not have actual notice of such conduct.  In Davis, the Supreme Court distinguished peer-to-peer harassment from conduct involving employees and held that schools can only be liable for monetary damages in student-on-student cases for “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The Court specifically justified the heightened standard in peer harassment cases by recognizing that “schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender.”

Despite the Court’s narrowing of the harassment standard as applied to peer-to-peer harassment in cases involving individual suits for money damages, the DOE itself maintained a broad definition of sexual harassment consistent with Title VII workplace standards for its own enforcement purposes. Citing Title VII case law, guidance issued in 2001 and referenced in subsequent directives, specifically defined sexual harassment as “unwelcome conduct of a sexual nature . . . includ[ing] unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”  The guidance focused on “whether the harassment rises to a level that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex.”  For hostile environment claims in particular, the guidance looked to whether “sexually harassing conduct by an employee, another student, or a third party is sufficiently serious that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex.”  OCR considered the conduct from both a subjective and objective perspective and evaluated “the severity and pervasiveness” of the conduct based on a “the constellation of surrounding circumstances, expectations, and relationships,” including “the degree to which the conduct affected one or more students[’] education,” “[t]he type, frequency, and duration of the conduct,” “[t]he identity of and relationship between the alleged harasser and the subject or subjects of the harassment,” “[t]he number of individuals involved,” “[t]he age and sex of the alleged harasser and the subject or subjects of the harassment,” “[t]he size of the school, location of the incidents, and context in which they occurred,” “[o]ther incidents at the school,”  and “[i]ncidents of gender-based, but nonsexual harassment.”

The DOE justified its consistent use of the broader Title VII standard for sexual harassment based on its position that “Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.”  It further stated the standard “provide[s] the necessary flexibility for taking into consideration the age and maturity of the students involved and the nature of the school environment.”  Particularly for colleges and universities, the workplace standard for sexual harassment may have been appropriate for a few reasons.  First, Title IX applies to employees as well as students and, therefore, applies to sexual harassment committed by faculty or administration against subordinate staff or students.  Consistent Title IX and Title VII standards ensured parity in investigation and enforcement mechanisms for faculty and staff-related sexual harassment matters.  In addition, colleges and universities are launching pads for employment for undergraduate and graduate students.  Therefore, a parity of standards may have enabled students to conform their conduct to future workplaces.  However, in other respects, college life is vastly different than the workplace: students live together on campus, spend substantial time socializing after hours, travel on study abroad programs, and use texting and social media for innumerable personal and intimate interactions.

Following the Obama Administration’s stepped up enforcement of Title IX, colleges and universities focused efforts on investigating sexual assault claims but also increasingly initiated investigations and enforcement of harassment involving speech-based conduct, including texting, dissemination of photos and videos on social media platforms, and discussions both inside and outside the classroom on topics that are sexual in nature.

Definition of Sexual Harassment Under New Regulations

The new regulations define “sexual harassment” as “conduct on the basis of sex that satisfies one more of the following” categories:

• Quid pro quo sexual harassment, meaning that “an employee of the recipient [school] conditions the provision of an aid, benefit, or service of the recipient [school] on an individual’s participation in unwelcome sexual conduct”;
• Hostile educational environment, meaning “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient[] [school’s] education program or activity”;
• Clery Act violations, including sexual assault as defined in 20 U.S.C. 1092(f)(6)(A)(v), dating violence 34 U.S.C. 12291 (a)(10), domestic violence 34 U.S.C. 12291(a)(8), and stalking as defined in 34 U.S.C. 12291(a)(30).

Under the prior definition of sexual harassment, all alleged conduct, even rape or other sexual assaults, were analyzed under the “severe or pervasive” standard and a school was required to determine whether the alleged harassment it limited the complainant’s ability to participate or benefit from an education program.  Now, under the new definition, a complainant alleging quid pro sexual harassment or Clery Act violations need not demonstrate that the conduct was severe or pervasive, or that it limited his or her access to education. With respect to quid pro quo sexual harassment, the regulation is simply consistent with longstanding Title VII and Title IX law. For example, in Doe v. Mercy Catholic Medical Center, the Third Circuit noted that “[Q]uid pro quo sexual harassment — i.e., when tangible adverse action results from an underling’s refusal to submit to a higher-up’s sexual demands — is, by its very nature, intentional unequal treatment based on sex.” The DOE has also maintained that quid pro quo harassment does not raise the same speech concerns as hostile environment claims.  In its commentary published with the new regulations, the DOE stated that in quid pro quo claims, such “speech . . . by definition . . . [is] designed to compel conduct” and therefore “does not present constitutional concerns with respect to protection of speech and expression.”

The exemption of Clery Act violations from the “severe, pervasive, and objectively offensive” standard similarly lowers the standard of proof for complainants in some cases.  The complainant’s allegations must only satisfy the definitions set forth in the cited statutory law, several of which can be read broadly. Again, complainants making allegations that fall under these definitions do not have to demonstrate that the conduct was severe or pervasive or limited their access to education. The Clery Act violations that in and of themselves constitute sexual harassment are as follows. “Sexual assault,” is defined “as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.”  The FBI’s uniform crime reporting system includes within sex offenses definitions for rape and fondling and therefore cover sexual assault that includes forcible penetration and also lesser forms of nonconsensual physical touching.  “Dating violence,” is defined as violence committed by a person “who is or has been in a social relationship of a romantic or intimate nature with the victim” where relationship is defined by its length, type, and frequency of interaction.”  “Domestic violence” is more narrowly defined based on its criminal definition and includes, among other things, “felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim.” Finally, “stalking” can also be construed broadly and is defined as “engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others; or suffer substantial emotional distress.”  As a result, lesser allegations of fondling, dating abuse, or stalking that may not have met the prior standards of severity or pervasiveness are now considered per se sexual harassment under Title IX.

That leaves hostile educational environment claims, which now require heightened proof that the unwelcome conduct was “severe, pervasive, and objectively offensive” such that it “effectively denies a person equal access” to the educational program.  According to the DOE’s commentary, whether conduct is “unwelcome” is a subjective consideration from point of view of the complainant only.  However, to determine severity, the conduct must also be viewed from the perspective of a “reasonable person in the complainant’s position.” Given that much physical conduct may fall under either the quid pro quo or Clery categories of per se sexual harassment, the type of conduct left under hostile educational environment claims appears to be some forms of physical touching that do not involve touching of intimate body parts (including kissing), or verbal harassment, which include communications that are sexual or gender-based in nature.

The DOE has justified the heightened standard for the latter category by focusing on free speech and academic freedom concerns raised by allegedly “broadly and loosely worded anti-harassment policies.”  The DOE cites examples of the application of overly-broad harassment policies situations, for example, the investigation of a film professor for writing an essay critical of sexual harassment policies or a professor who was suspended after showing a film in class that was critical of the adult film industry.  However, there are a multitude of other examples that may not seriously implicate First Amendment or academic freedom concerns, including gender-based and sexualized commentary targeting and diminishing certain persons, stereotyping based on gendered traits (which may disproportionately impact persons who identify as LGBTQ), and dissemination of sexually inappropriate photographs and videos.  The DOE’s revised definition has left open questions about how schools will address complaints that address these category of conduct.

Implications for Future Claims by or Against Students and Faculty

In essence, the DOE has aligned its hostile environment standard for any complaint, whether employee-to-employee, employee-to-student, or student-to-student, with the standard for monetary damages for peer harassment under Davis.  This raises questions about whether employees—including faculty, graduate students, and staff—should simply utilize Title VII or state law discrimination procedures to proceed with sexual harassment complaints against schools.  Such procedures require exhaustion of administrative claims at the EEOC or state administrative bodies and therefore may potentially increase sexual harassment litigation that previously was resolved through internal Title IX processes.

To the extent there is gray area about what conduct is now prohibited by Title IX, namely in claims involving verbal harassment, the question is whether complainants will be chilled from bringing forward such complaints or whether they will be encouraged to bring them through other provisions of the school’s code of conduct.  As my colleague previously discussed, if Title IX does not cover such conduct, the new regulations make clear that schools may use other provisions of their student or faculty conduct codes to discipline students or faculty engaged in conduct that does not meet the new definition of sexual harassment.  Such codes may not offer the full array of procedural protections set forth in the new regulations, including the rights to notice, an advisor, access to evidence, live hearings, and cross-examination, which raises concerns that parties to Title IX cases may be increasingly subjected to confusing two-track disciplinary processes with various levels of procedural protections for different allegations.

The DOE’s revision of the definition of “sexual harassment” on school campuses raises more questions than answers about the scope of prohibited conduct under Title IX.  Given that most Title IX complaints are investigated and resolved internally, we will only know the consequences of the new definition if and when cases challenging application of the new standard trickle up to the DOE’s Office of Civil Rights or the courts.

 

This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.

 

If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.