Title IX Final Rule – 10 Things You Need to Know
Higher ed HR pros are working tirelessly to update institutions’ policies and procedures after the sudden shift of work operations as a result of the public health crisis. On top of this workload, institutions must now prepare to be in compliance with the final Title IX rule by August 14. The new rule changes how colleges and universities must handle allegations of sexual assault and harassment.
A recent CUPA-HR webinar, sponsored by AIG, highlighted 10 changes to the new rule that higher ed needs to be aware of to begin the process of compliance. Though the 10 changes mentioned below may be useful in helping institutions identify and prioritize action items, all colleges and universities subject to Title IX must work together with their legal team to ensure that they are fully compliant with all of the provisions of the final rule.
1) Definition of Sexual Harassment
- Must be determined by a reasonable person to be so “severe, pervasive and objectively offensive” that it effectively denies a person equal access to the institution’s program or activity.
- Conduct must occur within the context of an “education program or activity.” This definition may extend to certain off-campus locations, such as university recognized fraternity and sorority houses and university sponsored academic conferences.
- Conduct must occur in the U.S.
- The definition of sexual harassment will also expressly include sexual assault, dating violence, domestic violence and stalking. These definitions use the Clery Act and VAWA definitions.
2) Mandatory Dismissal
- Recipient must dismiss the complaint if allegations do not meet the Title IX definition of sexual harassment.
- Dismissal does not preclude action under the college or university’s code of conduct.
3) Emergency Removal
- Colleges and universities may remove a student from an education program or activity if the institution conducts an individualized safety and risk analysis, determines there is an immediate threat, and provides the respondent with notice and an opportunity to challenge the decision immediately following removal.
4) Notice Requirement
- Before any initial interview, the respondent must receive written notice (with sufficient time to prepare before initial interview), including identities of the parties involved, the conduct allegedly constituting sexual harassment, and the date of the alleged incident.
- There is a continuing obligation for the institution to update written notice.
- The written notice must also state that the respondent is presumed not responsible, may have an advisor (could be an attorney), and may inspect and review evidence.
5) Evidence Gathering
- Institutions may not restrict either party from either discussing the allegations under investigation or gathering and presenting relevant evidence. The U.S. Department of Education states that restricting respondents from discussing allegations may limit their ability to effectively present evidence.
6) Informal Resolution
- An informal resolution process is allowed, except for allegations where an employee harassed a student.
- Both parties must agree to informal resolution.
- Either party may withdraw from the informal resolution process and resume the grievance process at any time.
7) Evidentiary Standard
- Consistent with interim guidance, colleges and universities may use either the “preponderance” standard or the “clear and convincing” standard.
- Institutions must apply the same standard of evidence to all Title IX cases and all Title IX complaints against employees and students.
8) Inspection of Evidence
- Both parties must be given an equal opportunity to inspect evidence directly related to the allegations at least 10 days before completion of investigative report and at any hearing.
- Evidence must include any inculpatory and exculpatory evidence, whether obtained from an involved party or another source.
9) Live Hearing
- Unless the parties agree to an informal resolution process, a live hearing is a required element for all post-secondary grievance procedures.
- The Title IX coordinator can be the investigator, but cannot be the decision maker or appellate officer.
- A hearing may be held in one location, may be held virtually, or may be held in real time (at the request of a party, or at the institution’s discretion).
- The hearing must be recorded or transcribed, with the recording or transcript available to parties for inspection and review.
10) Cross Examination
- The institution must allow for the cross examination of witnesses.
- Cross examinations must be conducted by an advisor (who may be an attorney), and never by the party. If any party does not have an advisor, the institution must provide one free of charge.
- Questions challenging credibility are allowed. The decision-maker may preclude irrelevant questions. Questions about complainant’s prior sexual behavior or sexual predisposition are not generally allowed.
- If an individual refuses to submit to cross examination, the decision-maker may not rely on any statement of that individual to determine responsibility.
Title IX and Sexual Harassment Toolkit (CUPA-HR members-only)
A Matter of Trust: Strategies for Creating a Harassment-Free Workplace (Higher Ed HR Magazine)
A Thoughtful Approach: How to Conduct Impactful, Engaging, In-Person Sexual Harassment Training (Higher Ed HR Magazine)