Department of Education’s proposed changes to Title IX designed to expand protections
In celebration of the 50th anniversary of Title IX of the Education Amendments of 1972, the U.S. Department of Education released for public comment its long-awaited proposed amendments to the civil rights law. These proposed changes, which were officially published on July 12, 2022, are open to public comment until September 12, 2022.
As a reminder, the purpose of Title IX is to eliminate discrimination on the basis of sex in any education program or activity receiving federal financial assistance (a “recipient”).
Expanded protections proposed
- The proposed regulations make clear that they prohibit all forms of sex discrimination, and specifically cover discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, essentially incorporating the protections of the U.S. Supreme Court’s decision in Bostock v. Clayton County into the Title IX context. Sex-based harassment continues to include quid pro quo harassment, but would also be broadly defined to include sexual harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, as well as hostile environment sexual harassment that is sufficiently severe or pervasive enough under the circumstances to deny or limit an individual’s ability to participate in or benefit from the education program or activity.
- The proposed amendments cover conduct that occurs off-campus. A recipient would have an obligation to address a sex-based hostile environment even if the sex-based harassment contributing to the hostile environment occurred outside the recipient’s program or activity or outside of the United States.
- The required response to sex discrimination would also change. Currently, a recipient with actual knowledge of sexual harassment must respond in a manner that is not deliberately indifferent. The regulations propose that a recipient take prompt and effective action to end any prohibit discrimination, prevent its recurrence, and remedy its effects.
- The proposed rules broaden the scope of individuals at schools who are responsible for reporting sex discrimination, and require recipients to provide information and training regarding when and how reports of discrimination can be made.
- The proposed rule permits a recipient to offer the informal resolution process in more situations.
- The amendments also consolidate the grievance procedure requirements for all recipients, and then address the additional requirements for grievance procedures for post-secondary institutions.
Next steps for Title IX recipients
Recipients should note that the current Trump-era Title IX regulations remain in effect until a final rule under this proposed rulemaking becomes effective, and it is unclear how long that will take. Recipients are encouraged to provide their feedback to the proposed regulations prior to the September 12 deadline, and McAfee & Taft Labor & Employment Group attorneys are available to assist with that process.
Additionally, recipients should review the proposed amendments and begin planning for implementation because, apart from potential minor variances, they are likely to become final. Because a detailed summary of the 700-page proposed rulemaking is not feasible for purposes of this article, recipients should contact McAfee & Taft counsel to discuss any specific questions regarding the expected changes to Title IX.