CUPA-HR Submits Comments in Response to Title IX NPRM

On September 12, CUPA-HR submitted comments in response to the Department of Education (DOE)’s Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM seeks to rollback and replace the Trump administration’s 2020 Title IX rule, specifically with respect to its grievance procedures, and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

CUPA-HR filed comments to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. In our comments, we highlight the two sets of grievance procedures promulgated by the proposal: procedures used for cases involving employee-on-employee sex-based harassment (section 106.45) and procedures used for sex-based harassment involving an employee and student, regardless of whether the employee involved is the complainant or respondent (section 106.46). Our comments argue that such procedures in cases where the employee is a respondent may be unnecessarily prescriptive and will interfere with existing obligations, policies and procedures already utilized by institutions that are required to handle such incidents of sex-based employment discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and state and local employment laws.

In light of our concerns, our comments ask the DOE to exempt any sex-based harassment of employee respondents against a student complainant from the section 106.46 requirements, and to exempt all sex-based harassment claims where an employee is the respondent, regardless of whether the complainant is a student or an employee, from the section 106.45 requirements. These comments directly align with the concerns and requests written in the American Council on Education’s comments, which CUPA-HR also signed on to.

Finally, our comments suggest that the DOE consult with other federal agencies with jurisdiction over discrimination law, including the Equal Employment Opportunity Commission to rationalize the requirements instituted by the Title IX regulations and Title VII, and to issue joint guidance on how to minimize potential conflicts between the obligations to claimants under Title VII and respondents under Title IX.

The DOE received over 200,000 comments in response to the NPRM, which they must now review prior to issuing a final rule to implement their changes. It is therefore unclear when we can expect the final rule and effective date of the new regulations. CUPA-HR will keep members apprised of any updates on the Title IX regulations.