Title IX of the Education Amendments of 1972 (Title IX) mandates a thorough, multistep grievance process to respond to and investigate allegations of sex discrimination, including sexual harassment and sexual violence, at covered institutions of higher education (IHEs). While the mandated process is meant to provide overall access and equity for complainants and respondents, some individuals may require accommodations to meaningfully participate in all aspects of the process. These accommodations may stem from preexisting medical conditions or be needed as a result of the physical, mental, or emotional impact of the particular incident in question. When faced with such requests, IHEs should be aware that Title IX requires them to provide reasonable accommodations for eligible students with disabilities to facilitate an equitable process for all parties involved. Below are some of the best practices for handling accommodations during the Title IX grievance process.
Handling Requests for Accommodations
An IHE with actual knowledge of sexual harassment must respond promptly by initiating the institution's formal grievance process. Upon receiving a formal complaint, the IHE must provide written notice to the parties explaining the institution's Title IX complaint process and include sufficient details of the allegation. In this initial notification, the IHE's Title IX Coordinator, or other person designated by the IHE to facilitate the resolution process, may inform the parties involved of their right to request reasonable accommodations to support them throughout the investigation and adjudication, and how to go about doing so.
IHEs are permitted to set reasonable standards for how individuals must document their request for a reasonable accommodation. Accommodations should be approved after an individualized assessment of the needs of the requesting party or witness. After an IHE receives a request for a disability accommodation by a participant, it must assess whether the requesting party has a disability and qualifies for a reasonable accommodation. IHEs must comply with the requirements and considerations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) (the latter of which applies to those who receive federal funding), but may also provide supportive measures that go beyond disability accommodations. Under the ADA and Section 504, "qualified individuals with disabilities" are individuals with a physical or mental impairment that substantially limits one or more major life activities. There is no all-encompassing list of covered impairments; therefore, the IHE should consider how the limitations will impact the complainant's or respondent's ability to participate in the grievance process when making a determination on the request. IHEs, through their Title IX Coordinators, are permitted to request supporting medical documentation to assist them in this decision. However, the IHE's Disability Services Coordinator and Office for Disability Services (ODS) are the only individuals who can accept and review confidential medical records and issue a determination of whether the request for accommodation should be approved. IHEs may also consider whether the requesting participant already has an approved accommodation on record for learning, housing, or other reasons, and whether they should continue this accommodation throughout the grievance process.
If an IHE, through its designated individual, determines that a reasonable accommodation is warranted, the next step is to determine what reasonable accommodation is appropriate based on the individual's limitations. IHEs are not required to provide the specific accommodation that the individual requests, as long as it offers a reasonable accommodation that would allow the individual to meaningfully participate in the grievance process. Reasonable accommodations may include, but are not limited to, (i) longer or more frequent breaks during hearings and interviews; (ii) use of an interpreter, support aid, or assistive technology; (iii) non-party note-takers; (iv) permission to copy investigation documents; or (v) deadline extensions for submitting paperwork. For example, if a party or witness is temporarily unable to participate in a component of the grievance process because of a disability, an IHE has the discretion to provide limited extensions for good cause only, as delays in the process are not appropriate under Title IX simply because of lack of feasibility. IHEs are required to balance fairness to both parties, interests of promptness, and accuracy of adjudications when deciding to provide a limited extension. If the IHE grants an extension, it must provide notice of the reason and estimated length of the delay, and important updates regarding the investigation to both parties. Key to the approval of the accommodation is that it addresses the participants' needs but does not provide an unfair advantage to one participant over another during the grievance process. Since the evaluation of such a request occurs on a case-by-case basis, IHEs should keep diligent records of the requests and their rationales for granting or denying accommodation requests to ensure consistency in the decision-making.
Once the decision-maker makes a determination, the Title IX Coordinator should notify the participant of the decision and, if the accommodation is granted, what it will entail and whether it will affect any deadlines. In addition to notifying the requester, the Title IX Coordinator should also notify all other parties to ensure that all participants are aware of any changes to the investigation or hearing process. When doing so, it is imperative that the notifying individual maintain strict confidentiality regarding the underlying medical condition or issue that necessitated the accommodation. Depending on the circumstances, all parties should have the option to request the same accommodation to ensure an equitable process.
In addition to communicating the decision to the participants, the Title IX Coordinator should also inform those individuals who are responsible for implementing the grievance process to ensure they properly incorporate the accommodations. Title IX investigators should be aware of approved disability accommodations but should not receive confidential information about the specific medical condition.
Incorporating Requirements for Disability Accommodation Requests into Your Existing Title IX Policy
IHEs must ensure their existing Title IX grievance policy clearly establishes the process for complainants and respondents to request reasonable accommodations for their qualifying disability. IHEs are encouraged to amend their existing Title IX policy to include a clear, separate section pertaining to requests for disability accommodations. We recommend including the definition of "disability" (encompassing both obvious or unknown disabilities), information on how to access the ODS and other available campus resources, and the paperwork the participant may need to complete in order to formalize a request.
Should your educational institution have any additional questions regarding how to reasonably accommodate parties or witnesses with disabilities in the Title IX grievance process, please contact the authors of this article or any other member of Venable's Higher Education Group or Labor and Employment Group.
* The authors of this article thank Samantha Furman, law clerk, for her assistance in its preparation.