As expected, the U.S. Department of Education (DOE) recently released proposed Title IX regulations, specifically concerning sexual harassment, including sexual assault. This is significant because the DOE has never addressed these issues through regulation. In the past, guidance has only been available through informal resources, such as the 2011 Dear Colleague Letter and the 2014 Guidance/Q&A. As discussed in previous blog posts, these new regulations, if adopted, would constitute a substantial departure from prior guidance.

For example, the regulations, for the first time, provide a regulatory definition of sexual harassment under Title IX. If the regulations pass as currently proposed, three types of behavior will be considered sexual harassment.

  • Quid pro quo harassment, whereby a school employee conditions educational benefits or services upon a person’s engagement in unwelcome sexual conduct.
  • Unwelcome conduct on the basis of sex that is so “severe, pervasive, and objectionably offensive” that it effectively denies a person equal access to education.
  • Sexual assault, including rape, fondling, incest, or statutory rape, as defined in the Clery Act Regulations.

The proposed regulations also significantly change how schools (K-12 and colleges and universities receiving federal funding) must respond to, investigate, and decide reports of sexual harassment, including sexual assault.

A school is obligated to respond to complaints of sexual harassment once it has “actual knowledge” of the sexual harassment that occurred within the school’s education programs or activities. The proposed regulations do away with the concept of a “responsible employee,” and only require reporting by a school’s Title IX coordinator or “an official with authority to take corrective action”. Once the coordinator or official receives a report, a college or university’s obligation to respond is triggered.

A school is required to investigate when a formal complaint is filed. Previously undefined, a “formal complaint” is a document alleging sexual harassment and requesting initiation of an investigation that is signed by a complainant or the Title IX coordinator.

The regulations propose that schools respond meaningfully to a complaint and act reasonably in light of the known circumstances. This is consistent with the “deliberate indifference” standard often applied by courts when reviewing Title IX investigations. Other noteworthy changes in how a school must investigate and resolve a complaint are:

  • Schools can now choose between the clear-and-convincing standard of evidence or the previous preponderance of the evidence standard; however, if the latter is used, the same standard must be applied within the school’s code of conduct.
  • Final responsibility determinations must be made at a live in-person hearing.
  • Cross-examination of both parties may now occur by their respective advisors.
  • The decision-maker must now be separate from the Title IX coordinator or investigator.
  • The parties may elect informal resolution procedures, such as mediation, at any time before a responsibility determination
  • The regulation provides a “safe harbor” provision to protect schools against a finding of deliberate indifference in certain cases.

We will explore these and other proposed changes in upcoming posts. For now, the public comment period is ongoing. The DOE has the discretion to modify the regulations or disregard submitted comments. Once finalized, the regulations will be binding on educational institutions. Given the potential for substantial change in Title IX response and investigation requirements, schools should review the proposed regulations carefully with an eye toward adapting their own policies and processes to remain in compliance.

I’m a management-side employment lawyer. It’s my job to go to court and defend employers and executives accused of all different types of misconduct, including sexual harassment. Over the last 20 years, I have seen it all. Some of my cases involve relatively tame allegations, like telling dirty jokes around the watercooler. And I have also been involved with cases involving extremely serious accusations, including indecent exposure, unwanted touching, and sexual assault. I spent a fair amount of time watching the Kavanaugh hearings. Like everyone else I know, I have a strong opinion on whether or not the nomination should be approved, but I did not write this article to share my personal opinions. There are enough political commentators on cable news shows doing that already. From an employment litigation and human resources perspective, there are several important lessons to be learned. Continue Reading Lessons from the Kavanaugh Hearing

In litigation, claims are subject to statutes of limitations. Because the passage of time can affect such things as witness memory and evidence preservation, states pass statutes of limitations providing that claims cannot be brought after the expiration of a certain number of years after a claim arises. While the statutes of limitations vary from state to state and from claim to claim, limitation periods of one, two, or three years are common. Although there are special rules that may delay or otherwise alter the date on which a limitations period begins, once the period expires, a claim cannot be brought. Continue Reading The “Limitations Period” in Research Misconduct Cases: What You Need to Know

This article originally appeared in The Legal Intelligencer on August 01, 2017

IN-HOUSE COUNSEL

I have never met an attorney who did not believe that he was perfectly capable of drafting legislation. This confidence may come from a mastery of the case law governing the subject matter of the ­proposed legislation. Or perhaps it derives from the attorney’s previous struggles with the ambiguities of a statutory scheme in the course of representing a client. Maybe it is simply because as lawyers we are trained from our earliest days in law school how to read, interpret and apply statutes to the most twisted set of facts our professors could come up with. Whatever the reason, we lawyers are a confident bunch when it comes to legislative drafting.  Continue Reading Five Tips for Successfully Drafting Pa. Legislation

As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017.  Continue Reading DOE Announces Intention to Revise Title IX Campus Sexual Misconduct Investigation Requirements

This article originally appeared in The Legal Intelligencer on April 25, 2017

IN-HOUSE COUNSEL

Since taking office on Jan. 20, President Donald Trump has ­issued two executive orders designed to implement what his chief strategist Stephen K. Bannon has described as “deconstruction of the administrative state.” While ­”deconstruction” is perhaps too strong a word for what the administration has proposed thus far, corporate counsel would be well advised to keep abreast of the developments of the regulatory reform effort in Washington to prepare their clients to take advantage of this important, limited-time opportunity. Continue Reading Corporate Counsel and Trump’s Regulatory Reform Agenda

This article originally appeared in The Legal Intelligencer on February 21, 2017

IN-HOUSE COUNSEL

Last fall, the U.S. Sentencing Commission published the results of its study on the federal ­prosecution of corporations and other organizational ­offenders. The results of that study, based on sentencing data for the calendar year 2015, says much about the types of organizations and offenses that are most likely at risk for federal prosecution and how corporate counsel can reduce the risk of corporate criminal liability in the new year.  Continue Reading Reducing the Risk of Corporate Criminal Liability

This article originally appeared in Corporate Counsel on January 1, 2017.

Much has been written over the last sixteen months interpreting the shift in U.S. Justice Department policy placing greater emphasis on individual accountability for corporate wrongdoing in federal civil and criminal enforcement proceedings.  Apparently not all of it was accurate.  In what has become known as the “Yates Memo” issued on September 9, 2015, U.S. Deputy Attorney General Sally Quillian Yates outlined six steps to strengthen the Department’s pursuit of individual wrongdoing in corporate investigations:  Continue Reading Five Common Misconceptions About The Yates Memo

This blog post was updated on March 17, 2017 due to the news that SCOTUS will no longer hear Gavin Grimm’s bathroom case.

The evolving field of enforcement of Title IX matters took another turn last week.

On February 22, 2017, the Department of Education and Department of Justice, under the direction of the new Administration, together issued a “Dear Colleague Letter” (“Letter”) expressly rescinding certain guidance letters from the previous administration, which provided that Title IX’s prohibition of discrimination based on “sex” protects transgender students from discrimination based on their gender identity.

Continue Reading The Future of Title IX Enforcement and Gender Identity