Title IX of the Education Amendments of 1972 (Title IX) and the U.S. Department of Education implemented regulations that prohibit discrimination on the basis of gender in federally assisted education programs and activities. Title IX protects students in connection with all of the academic, educational, extra-curricular, athletic, and other programs of a college, whether they take place in the facilities of the college or at a class or training program sponsored by the college at another location.
The Office for Civil Rights- U.S. Department of Education (OCR) has determined that colleges can be found in violation of Title IX if employees, in the context of carrying out their day-to-day job responsibilities in teaching, counseling, supervising, and advising students, deny or limit a student’s ability to participate in, or benefit from, the college’s program on the basis of gender.
Under Title IX regulations, colleges are responsible for discrimination/harassment whether or not it knew or should have known about the discrimination/harassment, because the discrimination/harassment occurred as part of the college’s undertaking to provide nondiscriminatory aid, benefits, and services to students. This is different than discrimination/harassment in the employment context, because in the employment context, a college’s responsibilities are not triggered until a college knew or should have known about the discrimination/harassment.
Discrimination/harassment can be either gender- or sex-based in nature. Both forms of discrimination/harassment fall within the protections afforded by Title IX. Gender-based discrimination/harassment includes acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature. It is a form of sex discrimination to which the college must respond, if it rises to a level that denies or limits a student’s ability to participate in or benefit from the educational program.
Sex-based discrimination/harassment is unwelcome conduct of a sexual nature sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or creates a hostile or abusive educational environment. Conduct is unwelcome if the student did not request or invite it and regarded the conduct as undesirable or offensive. Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome.
The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct, is included within this definition. Sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct. Harassment of this type is generally referred to as hostile environment harassment. Hostile environment harassment is evaluated from a subjective and objective viewpoint, and the totality of the circumstances are considered in determining the severity and pervasiveness of the harassment.
Sexual harassment does not extend to legitimate nonsexual touching or other nonsexual conduct. For example, a high school athletic coach hugging a student who made a goal or a teacher’s consoling hug for a student with a skinned knee will not be considered sexual harassment. Similarly, one student’s demonstration of a sports maneuver or technique requiring contact with another student will not be considered sexual harassment. However, in some circumstances, nonsexual conduct may take on sexual connotations and rise to the level of sexual harassment. For example, a teacher’s repeatedly hugging and putting his or her arms around students under inappropriate circumstances could create a hostile environment.
Colleges are required to adopt policies designed to address various circumstances under which both sexual and non-sexual harassment/discrimination can occur. The policies must contain guidelines for compliance with the requirements imposed under State and Federal discrimination law, as well as Title IX. The circumstances addressed include the following: (1) employee-on-employee harassment/discrimination; (2) employee-on-student harassment/discrimination; (3) student-on-student harassment/discrimination; and (4) third-party-on-student harassment/discrimination.
It is not necessary to have separate policies for each circumstance or kind of harassment/discrimination so long as the single policy comports with Title IX requirements. Also, while gender-based harassment/discrimination differs from sexual-based discrimination/harassment, the OCR has explained that the same standards usually apply, and a policy that contains provisions for sexual-based discrimination/harassment will also meet the requirement for gender-based discrimination/harassment. The OCR guidance has identified a number of elements that must be addressed in a policy for it to be considered Title IX compliance.
In addition to the adoption of a policy, colleges are required to provided training to those employees likely to witness or receive reports of sexual violence, including professors, school administrators, school counselors, general counsels, athletic coaches, health personnel, and resident advisors. There is no minimum number of hours of training required, however, it should be provided annually. The training should be accompanied by an annual employee survey seeking to determine the employee’s knowledge of a college’s obligations under Title IX. This training can be accomplished by and under the direction of the Title IX Coordinator.
Likewise, colleges need to provide training for its students. The training should encourage students to report incidents of sexual violence. The training should explain that students (and their parents or friends) do not need to determine whether incidents of sexual violence or other sexual harassment created a hostile environment before reporting the incident. This training can incorporate preventive education programs to the campus community as a whole, which includes reviewing sexual assault policies and conducting climate surveys to learn more about the prevalence of sexual violence at the college.
The Michigan Community College Risk Management Authority (MCCRMA), sponsored in part by CMDA, will be providing training regarding the requirements of Title IX on December 2, 2014 at Oakland Community College- Auburn Hills Campus. If you are interested in attending the training, please contact Patrick Sturdy at (734) 261-2400 or firstname.lastname@example.org for additional details.
Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on education law, employment and labor law, corporate and business law, and intellectual property. He may be reached at (734) 261-2400 or email@example.com.