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ICS’ 2022 NPRM “Top Ten”

July 28, 2022

On the 50th Anniversary of Title IX, the Department of Education published the long-awaited Notice of Proposed Rulemaking (NPRM) for the newest Title IX Regulations. Although we predict that the final rule will not be finalized until well into 2023, the NPRM gives us valuable insight on the Department’s evolving definitions of sexual harassment and discrimination based on “sex.” To help you get a sense of the rule’s substance, our team has identified NPRM highlights and the “Top 10 Things to Know” about the proposed rule. 

Highlights 

The NPRM specifically states that the new regulations will not address transgender participation in athletics. Instead, the Department stated that it will publish an additional rule addressing this issue. While the NPRM expands parts of the 2020 Regulations, it is worth noting that it is not an entire rewrite of the 2020 Title IX regulations. Finally, the Department has indicated that it hopes to reduce the burden on schools and institutions to comply with Title IX. 

#1 – Expanded Scope

The proposed regulations expand the scope of sex discrimination, off campus activity, and standing.  Specifically, the Department proposes moving from the current definition of sexual harassment (§106.30(a)) and clarifying that sexual harassment covers all forms of sex-based harassment rather than just sexual harassment.  The scope of “discrimination on the basis of sex” is clarified and expanded to include discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Finally, under the proposed regulations, a school may have an “obligation to address a sex-based hostile environment” within its program or activity even if the harassment “contributing to the hostile environment occurred outside” the school’s program or activity or outside the United States.

#2 Mandated Training Expanded 

The NPRM has made it clear that training is an essential part of Title IX compliance. Under the proposed rule, training is required for: “all employees, anyone responsible for implementing the grievance process, [and] anyone who has the authority to terminate supportive measures.” Proposed rule §106.8(d)(1) would require that all employees be trained on how to address sex-discrimination, what conduct constitutes sex discrimination and sex-based harassment, and the “applicable notification and information requirements.” Training for your Title IX team remains, but is expanded, and the obligation to post training materials remains.

#3 New and Modified Definitions 

Section 106.2 of the NPRM contains numerous modified or additional definitions; some notable definitions include: 

      • Complaint: An oral or written request to initiate grievance procedures to the recipient 
      • Confidential employee: Includes an employee with a privileged role, an employee designated as confidential, or an employee conducting IRB research
      • Student: A person who gained admission. The rule specifies that admission means the student was “selected for part time, full time, special, associate, transfer, exchange, or any other enrollment, membership or matriculation in or out of education program or activity.” 
      • Relevant:  Related to the allegation of sex discrimination to aid a decision maker in determining whether sex discrimination occurred. 

#4: Title IX Coordinator’s Role 

The Department enhanced the role of the Title IX Coordinator to be potentially more complex. For example, there are additional proposed recordkeeping obligations that expand beyond the current requirement for Title IX Sexual Harassment, and the Title IX Coordinator has a more active role in monitoring and “remedying barriers to reporting.” 

#5: Sexual Harassment to Sex-Based Harassment – Modifying the “3 Buckets” 

ICS uses a “buckets” analogy to describe Title IX sexual harassment. Under the current 2020 Title IX Regulations, sexual harassment can fall into three buckets: 

      • Quid Pro Quo 
      • Severe, Pervasive, and Objectively Offensive
      • “Big 4” – Sexual Assault, Dating Violence, Domestic Violence, or Stalking 

The proposed regulations indicate a switch from “sexual harassment” to “sex-based harassment” and a modification to quid pro quo. The proposed new “buckets” are: 

      • Quid Pro Quo 
      • Hostile Environment 
      • Specific Offenses 

#6: Less Prescriptive Grievance Process, But Encompasses Broader Complaints of Sex Discrimination 

It is notable that the term “formal complaint” is not defined in the 2022 NPRM. Instead, the proposed rule uses “complaint” and specifies that a complaint can be oral or written to the recipient. Although the NPRM removed mandatory dismissal, the rules do provide additional details on permissive dismissal. 

The rules also describe who has the right to make a complaint of sex discrimination. A complainant, the Title IX Coordinator, or a “person with the right to make a complaint on behalf of the complainant” can make a complaint of sex-based harassment. The same parties in addition to “any student, employee, or third party participating in, or attempting to participate in, education program or activity” can make a complaint of sex discrimination other than sex-based harassment. 

Additionally, §106.45 provides for grievance procedures for complaints of sex discrimination. Although §106.45 is not as prescriptive as the procedures required under the current regulations, it still contains a number of requirements. The regulations also add §106.46 for a post-secondary institution’s process where a student is a complainant or a respondent and alleges sex-based harassment. 

#7: Initiating Informal Resolution 

Under the proposed regulations, a school may initiate informal resolution any time prior to a determination of responsibility.  The rules also clarify that a formal complaint is not required for informal resolution and that the Informal Resolution Facilitator cannot be the Investigator/Decision-Maker. The Informal Resolution Facilitator is also subject to mandated training requirements on their school’s informal resolution procedures. 

#8: Strengthens Retaliation Protections 

One major addition the NPRM proposes is heightened protections for retaliatory conduct. While retaliatory conduct is not sex-discrimination, proposed §106.45 states that the parties who can make a complaint of sex-discrimination can make retaliation complaints as well. The regulations also state that a party can allege “peer” retaliation and consolidate claims. 

#9: Discrimination Based on Pregnancy 

The Department has proposed enhancing protections for pregnant and parenting students and employees. Under proposed §106.40(a), “a recipient must not adopt or apply any policy, practice, or procedure concerning students, current, potential, or past parental, family or marital status that treats a student differently on the basis of sex.” Once notified of pregnancy or a related condition, the Title IX Coordinator must take 4 main steps: 

      • Inform student (and anyone who has a legal right to act on their behalf) of the school’s obligations (i.e.  prohibit discrimination, allow for modification, and allow for leave of absence) 
      • Provide voluntary reasonable modifications to education programs or activities 
      • Allow for voluntary leave of absence for a period of time deemed medically necessary 
      • Ensure availability of lactation space (other than a bathroom) that is clean and private.

Additionally, once an employee is informed of a student’s pregnancy or related condition, that employee must inform the student on how to notify the Title IX Coordinator for assistance. 

For employees, the proposed regulations codify various protections for parental, family, or marital status and pregnancy or related conditions.  These include a prohibition on policies, practices or employment action on the basis of sex concerning parental, family or marital status and pregnancy or related conditions.  They also include providing lactation time and space.  These provisions will enhance the need for collaboration between Human Resources and the Title IX office.

#10: Expanded Recordkeeping 

Lastly, the NPRM proposes broadening the existing record-keeping requirement to “cover records related to a recipient’s actions in response to all forms of sex discrimination, not only sexual harassment” for the existing seven year time period.  Furthermore, the Department proposes broadening the types of training records schools must maintain. Under proposed §106.8(d), schools must also “maintain records of certain training materials” to cover “all form of sex discrimination, including but not limited to sexual harassment.” 

What next? 

We understand that the NPRM is dense and a lot to process, but remember, this is not the final rule. Until there are finalized rules, likely sometime in 2023, keep following the 2020 Title IX regulations. We also suggest taking some time to review your policies and procedures on how your school addresses Title IX Non-Harassment Discrimination. 

If your institution or district wishes to comment on the 2022 NPRM, they may do so at https://www.regulations.gov/document/ED-2021-OCR-0166-0001. At the time of this blog, over 3,000 comments have already been submitted. Of particular interest to the Department of Education is schools’ feedback on the directed questions it included in the NPRM beginning on page 565. The deadline for commenting is September 12. 

Stay up to date on all the latest on the 2022 Title IX NPRM by bookmarking ICS’ 2022 NPRM page.

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