1. Adapting to the Rules’ Expanded
Scope
The new regulations extend Title IX’s coverage and
institutions’ response obligations in meaningful ways,
including but not limited to the following:
- The regulations expand Title IX’s prohibitions to include
discrimination or harassment on the basis of sexual orientation and
gender identity, consistent with the Supreme Court’s
interpretation in Bostock v. Clayton County.1
They also prohibit policies and practices which prevent a student
from participating in a program consistent with their gender
identity, with a few exceptions.2 - The regulations broaden the group of employees who must notify
the Title IX coordinator when they have information about conduct
that reasonably may constitute sex discrimination
under Title IX to include all those who are not confidential
employees and who have authority to institute corrective measures
on behalf of the institution or who have responsibility for
administrative leadership, teaching, or advising in the educational
program.3 - The regulations lower the threshold of hostile environment
harassment to include any “unwelcome sex-based conduct that,
based on the totality of the circumstances, is subjectively and
objectively offensive and is so severe
or pervasive that it limits
or denies a person’s ability to
participate in or benefit from the recipient’s education
program or activity.”4 - The regulations broaden the scope of individuals with the right
to make a complaint of sex discrimination other than sex-based
harassment to include students (which includes those who have
gained admission but not matriculated), employees, and those who
“participat[e] or attempt[] to participate in the
[institution’s] education program or activity at the
time of the alleged sex discrimination.”5 - The regulations clarify that off campus
conduct that contributes to a sex-based hostile
environment requires investigation if it is subject to the
institution’s disciplinary authority.6
Coming into compliance with these changes by August 1 will
require prompt updates to employee training and resources.
Institutions should move quickly to identify (1) who will need to
be trained on the updated regulations; and (2) how pre-existing
resources for educating campus stakeholders on their obligations
will need to be modified to reflect the definitions, scope, and
notification requirements under the new regulations. Additionally,
because the expanded scope of the new rules may lead to an
increased volume of complaints, institutions should contemplate
potential changes to staffing and office resources.
2. Modifying Grievance Procedures
The Final Rule modifies existing regulations on grievance
procedures in several important respects. For example, the new
regulations implement a preponderance of the evidence standard of
proof for sex discrimination claims unless the school uses the
clear and convincing evidence standard in all other comparable
proceedings.7
Institutions must adopt, publish, and implement grievance
procedures consistent with the new regulations. This will be a
familiar exercise for those that needed to move into compliance
with the Trump-era regulations. Once the revised procedures have
been finalized, Title IX coordinators and personnel—as well
as external partners who may assist with investigations and/or
adjudications—will need to be trained on them.
The procedural changes contained in the Final Rule generally,
although not exclusively, increase the ability of institutions to
exercise their discretion in establishing an effective grievance
process. For example, the new rules no longer require, nor do they
prohibit, live hearings or the cross-examination of
parties.8 Even without this requirement, however, the
Final Rule still includes conditions designed to protect the
ability of the decision-maker to question parties and for parties
to access a record of that questioning. Institutions should
carefully consider the implications of the various paths open to
them under the new regulations. Note that where institutions choose
to adopt procedures that apply to some but not all complaints of
sex discrimination, the rules require the institution to articulate
consistent principles for determining how the procedures will
apply. Additionally, institutions should ensure all modified
procedures and accompanying policy materials comply with other
federal and state laws and regulations or any other contractual
constraints.
3. Complying with New Protections for Pregnant and
Parenting Students and Employees
Title IX has long prohibited discrimination based on pregnancy
or related conditions. The new regulations strengthen protections
for these classes—namely, safeguarding students, employees,
and applicants against discrimination based on pregnancy,
childbirth, termination of pregnancy, lactation, related medical
conditions, and recovery—by adding affirmative obligations
for institutions.
First, in the event a student notifies an employee of the
student’s pregnancy or related condition(s), the employee must
provide the student with the Title IX coordinator’s contact
information and inform the student that the Title IX coordinator
can “coordinate specific actions to prevent sex discrimination
and ensure the student’s equal access to the recipient’s
education program or activity.”9 Consistent with
other Title IX obligations, institutions will need to ensure that
their employees are adequately trained to implement this
requirement.
Second, institutions are required to provide students and
employees access to a lactation space.10 While the Final
Rule does not provide specific requirements for the size or setup
of lactation spaces, it does require such spaces be “clean,
shielded from view, [and] free from intrusion from others.” It
cannot be a bathroom. The regulations are silent on the number of
lactation spaces needed. Institutions will need to exercise good
judgment in ensuring that there are enough spaces available
relative to the size of their workforces and student bodies, and
that such spaces are not prohibitively far from where employees and
students conduct their activities. Some institutions may not
currently have spaces meeting the Rule’s requirements readily
available. If so, institutions should move quickly and engage
necessary stakeholders soon to identify and prepare appropriate
spaces by August 1.
Third, the new regulations require that institutions provide
employees with “reasonable break time” for
lactation.11 Institutions will need to ensure that
employees who are “expressing breast milk or
breastfeeding”—the latter of which necessarily implies
that institutions must allow, in some fashion, employees to bring
nursing children into the institution’s education program or
activity—have adequate time and access to a lactation space.
To ensure employees have time, institutions may consider adjusting
timekeeping policies and practices to not burden or disadvantage
lactating employees.
Finally, institutions must make “reasonable
modifications” for students who are pregnant or have a related
condition.12 Although somewhat ambiguous, the Final Rule
states that reasonable modifications must be based on each
student’s “individualized needs.”13
Indeed, emphasizing the subjectivity of this standard, the Rule
adds that institutions must “consult with the student” to
satisfy this requirement.14 Institutions should prepare
resources to facilitate conversations with students seeking
modifications. However, while institutions will need to be ready to
provide a range of potential modifications, they will not be
expected to provide anything that the institution can demonstrate
would “fundamentally alter the nature of its education program
or activity.”
Footnotes
1 §§ 106.10, 106.2.
2 § 106.31.
3 § 106.44. Other employees must either notify the
Title IX coordinator or provide contact information of the Title IX
coordinator and information about how to make a complaint about sex
discrimination.
4 § 106.2.
5 § 106.45. The contours of this language may
warrant further clarification. The language could be read to
include, for example, all spectators of college and university
sporting events.
6 § 106.11.
7 § 106.45(h).
8 § 106.46(g); see also, as another example, §
106.45(b)(2), which allows but does not require a “single
investigator model.”
9 § 106.40(b)(2).
10 §§ 106.40(b)(3)(v),
106.57(e)(2).
11 § 106.57(e)(1).
12 § 106.40(b)(3)(ii).
13 Id.
14 Id
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