New Title IX Regulations: Three Takeaways for any Organization Subject to Title IX . . . or Title VII

Authored by Lisa Haldar and Allegra Lawrence-Hardy. Reprinted with permission from the May 16, 2024 edition of the Daily Report from Law.com | ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Last month, the Department of Education released its long-anticipated final regulations that broadly expand the protections of Title IX. Whether the regulations actually go into effect as scheduled on August 1, 2024, remains up in the air: over twenty states have filed lawsuits objecting to the Department’s regulations, with their focus on the Department’s expansion of sex discrimination to include “sexual orientation” and “gender identity” (consistent with the United States Supreme Court’s 2020 Bostock v. Clayton County decision).

And even if the regulations go into effect, you may wonder why you should care if your organization is not subject to Title IX. Frankly, you might not. While Title IX applies mostly to educational institutions, any organization receiving Department funds for education programs, such as libraries or museums, is also subject to Title IX. Through our work with clients who are subject to Title IX, and who are impacted by the new regulations, we can’t help but point out that when one reads the Department’s 1,000+ pages in the Federal Register, one might lose count of the times the Department references Title VII and its case law (like Bostock), with the Department reasoning more than once that its new regulations draw from Title VII law and seek to make the requirements under the two laws more consistent.

While we are not saying that the Title IX regulations alter employer’s obligations under Title VII—something the Department itself makes very clear—we are saying that for employers with an interest in fortifying their mitigation efforts to defend against Title VII claims, the new Title IX regulations, and the Department’s implementing reference materials, deserve a few minutes of your attention.

Three Takeaways:

1) Take prompt action in investigating employee complaints. Most employers already know that one of the most significant measures to cut off liability via the Faragher-Ellerth defense is a prompt investigation into employee complaints. Yet, neither Title VII nor the Faragher-Ellerth defense requires an employer to publish and meet an actual timeframe. Rather, what constitutes “prompt” is often fact-intensive, with EEOC Guidance explaining: “Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly.” (footnotes omitted).

The new Title IX regulations take the “prompt” action requirement a step further, requiring a recipient of Department funding to establish and enforce “reasonably prompt time frames for the major stages of the grievance procedures”—i.e., evaluation, investigation, determination, and appeal—and establish “a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay.” 34 C.F.R. § 106.45(b)(4) (Aug. 1, 2024). To that end, the Department’s Resource document suggests specific language (that essentially tracks the regulation) for recipients to include in their policies.

Of course, for purposes of Title VII, adding specific timeframes may not be recommended for every organization. Creating timelines only to fail to follow them will mitigate nothing. But loosely following the Department’s suggested policy language to create some parameters on the timing of the complaint process (assuming your organization can stick to that timing) can provide additional facts supporting the application of the Faragher-Ellerth defense and, practically speaking, may help your organization stay on track when it comes to complaints and investigations. Rather than language phrased in absolutes, however, policy language might refer to ideal timeframes for an organization’s procedures; provide a timeframe for when employees should follow up if they have not received an adequate response; explain that because complaints are sensitive and fact-specific, investigations and response times may need to be extended or delayed beyond any stated ideal timeframes; and state that the organization will strive to keep the complainant apprised about anticipated timelines.  

2) Increase visibility of your anti-harassment policy. Another known measure to cut off liability under Title VII is ensuring your organization has widely disseminated its anti-harassment policy. Yet, we cannot tell you how many times we interview employees in investigations who only have a vague recall of where their employer’s anti-harassment policy is located. Counteract that risk by taking a page from the Department’s new Title IX regulations, which require a recipient to “prominently include all elements of its notice of nondiscrimination . . . on its website and in each handbook, catalog, announcement, bulletin, and application form that it makes available to people entitled to notice[.]” 34 C.F.R. § 106.8(c)(2)(i) (Aug. 1, 2024).
Perhaps most helpful in the new regulations, id. § 106.8(c)(2)(ii), and as the Department’s Resource document explains, a recipient can satisfy this notice requirement by including a three-sentence statement in each of their publications: “[ABC School] prohibits sex discrimination in any education program or activity that it operates. Individuals may report concerns or questions to the Title IX Coordinator. The notice of nondiscrimination is located at [insert website address].” (alterations in original). Utilizing a similar three-sentence statement in your organization’s publications is an easy way to increase visibility of your policy. In addition to inserting a website address, creating a QR code leading employees to the policy is one more layer of protection.

3) Emphasize supportive measures for complainants. The final Title IX regulations provide several increased details on recipients’ obligations to provide and implement supportive measures, including, for example, counseling, campus escort services, leaves of absence, and changes in class and work activities. 34 C.F.R. § 106.44(g)(1) (Aug. 1, 2024). While supportive measures are not a requirement under Title VII, adding them to an anti-harassment policy (and following through) could substantiate arguments that your organization is committed to eradicating harassment and ensuring it does not recur. And providing such measures to employees may do exactly what they are intended to do: make employees feel supported. Supported employees are often less likely to sue their employers. Similar to the measures outlined by the Department, such measures could include counseling or connection with external support resources, increased security to help employees feel safe, providing time off and flexibility to recover, and long-term check-ins (recognizing that recovery takes time).

Of course, none of these measures are novel; your organization may have implemented them years ago. But for everyone else, the Department’s new Title IX regulations provide a good opportunity to think about how your organization might level up.
 
About the authors:

Allegra Lawrence-Hardy is a labor and employment partner and co-founder of Lawrence & Bundy.

Lisa Haldar is a labor and employment law partner at Lawrence & Bundy in the firm’s Atlanta office.