The Biden administration's Department of Education has finally released the much-anticipated final rule (the "Final Rule") amending the regulations for Title IX, which prohibits sex discrimination and harassment in education programs and activities receiving federal funding. All primary and secondary schools and institutions of higher education (IHE) (together, "Schools") should prepare to comply with the Final Rule, which will become effective on August 1, 2024—just in time for the next school year. Many of the changes from the Final Rule may significantly alter the way Schools handle Title IX matters going forward and will require Schools to revamp their Title IX policies. Below we have summarized some of the Final Rule's most impactful changes:
- Definition of Sex-Based Harassment: The Final Rule expands the definition of sex-based harassment to now encompass, among other things, harassment based on sex characteristics, sex stereotypes, sexual orientation, gender identity, pregnancy, and related conditions. It also expands the definition of hostile environment harassment to include conduct that is "severe or pervasive," rather than requiring that the conduct be both severe and pervasive to meet the threshold.
- Off-Campus Conduct: The Final Rule clarifies that Schools are now responsible for addressing all sex discrimination and sexual harassment, including sex-based hostile environment, that occurs off-campus or outside of the United States. Specifically, the Final Rule explains that Title IX applies to any conduct that is subject to the School's disciplinary authority and to conduct that occurs in any building owned or controlled by a student organization officially recognized by the School.
- Reporting Requirements: The Final Rule strengthens the reporting requirements for Schools that become aware of sex discrimination and sexual harassment; under the Final Rule, Schools must have knowledge of conduct that reasonably constitutes sex discrimination and sexual harassment, rather than having "actual knowledge" of such conduct, to which Schools must now respond "promptly and effectively," rather than in a manner that is not deliberately indifferent. Certain School employees, such as non-confidential employees at elementary and secondary schools, may also have new reporting obligations to notify the Title IX coordinator when they learn of conduct that may reasonably constitute sex discrimination or sexual harassment. The Final Rule also imposes employee training requirements. The Final Rule further specifies that complaints need not be in writing and signed in order to prompt an investigation; an oral request is now sufficient to trigger a School's obligation to investigate and respond.
- Grievance Procedures: The Final Rule specifies a number of requirements for a School's grievance procedures, some of which apply only to IHEs. Some of these changes provide some new flexibility, such as allowing a "single investigator model" when conducting investigations and adjudication proceedings. The Final Rule also no longer requires complainants of sex-based discrimination and harassment to attend live hearings or be cross-examined by the respondent. Individuals who raise Title IX complaints may now choose to participate in hearings remotely, and Schools may choose to interview students separately.
- LGBTQ+ Protections: The Final Rule expands protections for LGBTQ+ students, clarifying that individuals identifying as LGBTQ+ are protected under Title IX against gender identity or sexual orientation discrimination. However, the current administration delayed promulgating a final rule regarding transgender and nonbinary students' participation in athletic programs that align with their gender identity or expression.
- Pregnancy and Parental Protections: The Final Rule requires reasonable modifications for individuals based on pregnancy or related conditions. Upon learning of a student or employee's pregnancy, Schools are also required to provide them with information regarding the School's obligation to prevent discrimination on such a basis. Additionally, the Final Rule expands protections for caregivers by prohibiting discrimination against individuals who are parenting by including stepparents, legal guardians, and adoptive parents in the definition of "parental status." The new definition of "parental status" provides clarification regarding the scope of Title IX's prohibitions by acknowledging additional individuals with caretaking responsibilities.
The broader protections afforded by the Final Rule to complainants could lead to increased reports of discrimination or harassment, and Schools should be equipped to address such reports promptly and effectively. Having a Title IX policy that complies with the nuances of the Final Rule is of utmost importance, and Schools are encouraged to capitalize on the upcoming summer months to update their discrimination and harassment policies accordingly in order to comply with the new reporting, investigation procedures, and other revisions outlined in the Final Rule. For any questions regarding the Final Rule, drafting or revising policies or procedures, or best practices for handling complaints, please contact the authors of this article or another attorney in Venable's Labor and Employment Practice Group.