Common Mistake: Formal Grievance Process Required

March 3, 2022

The most common mistake we see at ICS when institutions and districts are responding to allegations of Sexual Harassment under the 2020 Title IX Regulations is the failure to follow the Title IX formal grievance process for allegations that rise to the level of Sexual Harassment and fall within the program or activity. The regulations state:

A [district or institution]’s response must treat complainants and respondents equitably by… following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.

Thus, a district or institution cannot circumvent the Title IX process by utilizing a student or employee discipline policy or procedure when the allegation is any form of Sexual Harassment under the Title IX Regulations. We understand that this creates confusion, slows down the process, and is counterintuitive to how other matters are investigated and resolved, especially in the K-12 setting; however, utilizing another process to discipline Title IX Sexual Harassment, or circumventing the Title IX formal grievance process by charging a respondent with another type of violation for the same behavior is considered “deliberate indifference” under the regulations. This is explained in the preamble to the regulations on page 668. The basis for the requirement of the use of the formal grievance process, per the preamble, is rooted in fundamental rights to due process.  Specifically, page 668 of the preamble states the basis for the use of the formal grievance process:

[T]he lack of clear regulatory standards [previously] has contributed to processes that have not been fair to the parties involved, have lacked appropriate procedural protections, and have undermined confidence in the reliability of the outcomes of investigations of sexual harassment complaints.

Further, the preamble at page 669 states:

Respondents also should not be punished for allegations of sexual harassment until after a grievance process that complies with § 106.45, as such a grievance process provides notice of the allegations to both complainants and respondents as well as a meaningful opportunity for both complainants and respondents to be heard.

Thus, it is imperative that Title IX Coordinators not discipline for Title IX Sexual Harassment that falls under the school’s program or activity without following the prescribed requirements in the Title IX formal grievance process.

In real time, this works in the following manner:

1.  Receive report of Sexual Harassment.

2. Meet with the Complainant to provide supportive measures, explain the Title IX formal grievance process, provide options including the filing of a formal complaint, and explain the reasons it may be (or become) necessary for the Title IX Coordinator to sign a formal complaint even if the Complainant does not.

3. If there is a formal complaint and it is not required to be dismissed, the prescribed formal grievance process, including notices, investigation with 10-day review periods, and resolution (live hearing for higher education and question and answer for K-12) must be utilized to discipline the student or employee.

While we agree that this is cumbersome and takes a substantial amount of time, it is also required. Thus, Title IX Coordinators should conduct an evaluation of each report to determine which process is appropriate for resolution. For more on the difference between a report and a formal complaint along with the way to approach the initial meeting with a complainant, see https://icslawyer.com/putting-policy-into-practice-series-blog-post-1/.

ICS provides a wide range of Title IX compliance services, including its Community Access program and its live interactive trainings. Contact us for more information.