Notice And Response Obligations Clarified Under OCR's July 2021 Title IX Q&A

Published date10 September 2021
Subject MatterEmployment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Education
Law FirmTaft Stettinius & Hollister
AuthorBlair Harrington and R. Ann Huntrods

July 2021 Title IX Q&A

In July 2021, the United States Department of Education, Office for Civil Rights (OCR) issued Questions and Answers on the Title IX Regulations on Sexual Harassment (the Q&A), which clarified how OCR interprets schools' existing obligations under the Title IX regulations that went into effect Aug. 14, 2020. The 2020 regulations and preamble, which together span more than 2,000 pages in length, added specific, legally binding steps that trigger a school's obligation to comply with Title IX: a school must promptly respond in a manner that is not deliberately indifferent when it has actual knowledge of actionable Title IX sexual harassment in an education program or activity. The Q&A serves as a more user-friendly starting point for accessing and understanding the key requirements of the 2020 regulations.

Under Title IX, "sexual harassment" includes certain types of unwelcome sexual conduct, sexual assault, dating violence, domestic violence, and stalking. See Q&A No. 5; 34 CFR ' 106.30(a). An institution has "actual knowledge" of sexual harassment when notice is received by the Title IX Coordinator or another official who has authority to institute corrective measures on the institution's behalf, or by any employee of an elementary and secondary school. See Q&A No. 14; 34 CFR ' 106.30(a). Because whether an official has authority to institute corrective measures depends on facts specific to each institution, the Q&A does not provide examples of officials who have this authority. Q&A No. 14. The mere obligation to report sexual harassment, however, does not automatically convert an individual to an official with authority. 34 CFR ' 106.30(a).

A school is required to respond if it has notice of alleged sexual harassment, even if it is not certain whether the harassment has occurred. See Q&A No. 18. Actual knowledge refers to notice of conduct that could constitute sexual harassment. Id. Thus, a school must respond when it receives notice of alleged facts that, if true, could be considered harassment under the 2020 regulations. Id. However, "[i]mputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge." 34 CFR ' 106.30(a).

In addition, a school must respond to allegations of sexual harassment, regardless of whether a formal complaint is filed, "promptly in a manner that is not deliberately indifferent." See Q&A No. 20; 34 CFR ' 106.44. A school is "deliberately indifferent" "only if its response to sexual harassment is clearly unreasonable in light of known circumstances." Id. Therefore, following receipt of an allegation of sexual harassment, the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, and to explain the process for filing a formal complaint. Id. The regulations do not require schools to impose particular remedies when a respondent is found responsible for sexual harassment. See Q&A No. 21. Instead, each school is free to make disciplinary and remedial decisions it believes are in the best interest of its educational environment. Id.

A "formal complaint" is a document filed by a complainant alleging sexual harassment against a respondent and requesting that the school...

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