THE DEFINITION OF SEXUAL HARASSMENT UNDER THE TITLE IX RULE PROVIDES CLARITY TO SCHOOLS

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THE DEFINITION OF SEXUAL HARASSMENT UNDER THE TITLE IX RULE PROVIDES CLARITY TO SCHOOLS

October 7, 2020
Protecting Students: Sex Discrimination

The new Title IX Rule went into effect on August 14, 2020.  Since that time, the Office for Civil Rights (OCR) has received inquiries regarding the definition of sexual harassment under the Final Rule.  All references and citations are to the unofficial version of the Title IX Rule, which is available here. A link to the official version of the Rule published in the Federal Register is here.

Sexual harassment under Section 106.30 of the new Title IX Rule (found in the Code of Federal Regulations at 34 C.F.R. Part 106) means conduct on the basis of sex in an education setting that satisfies one or more of the following:

  1. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
  3. “Sexual assault” as defined in 20 U.S.C. § 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

34 C.F.R. § 106.30(a) (defining “sexual harassment”).  The first category of the above definition is commonly referred to as “quid pro quo” harassment.  The second category incorporates the Supreme Court’s standard for actionable sexual harassment in the landmark case of Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).  And the third category refers to the Clery Act and the Violence Against Women Act to define four terms: “sexual assault,” “dating violence,” “domestic violence,” and “stalking.”  When conduct on the basis of sex meets one or more of these three categories, the conduct is “sexual harassment” under the new Title IX Rule.  As a reminder, in order for sexual harassment to trigger a school’s duty to respond under Title IX, the school must have actual knowledge of sexual harassment in the school’s education program or activity, against a person in the United States. 34 C.F.R. § 106.44(a).

Because the sex offenses in the third category of the sexual harassment definition rely on other Federal statutes for their definition, these offenses are discussed below.

  1. Sexual Assault.
  2. Rape— (Except Statutory Rape) The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
  3. Sodomy—Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
  4. Sexual Assault With An Object—To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
  5. Fondling—The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
  6. Incest—Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  7. Statutory Rape—Nonforcible sexual intercourse with a person who is under the statutory age of consent.
  8. Dating Violence
  9. who is or has been in a social relationship of a romantic or intimate nature with the complainant;
  10. where the existence of such a relationship shall be determined based on a consideration of the following factors:
    1. The length of the relationship.
    2. The type of relationship.
    3. The frequency of interaction between the persons involved in the relationship.
  11. Domestic Violence
  12. Stalking“Stalking’’ under the Title IX Rule is also defined by reference to VAWA, at 34 U.S.C. §12291(a)(30).  Under that provision, “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
    1. fear for the person’s safety or the safety of others; or
    2. suffer substantial emotional distress.

    The new Title IX Rule covers instances of stalking based on sex, including stalking that occurs online or through messaging platforms, commonly known as cyber-stalking, when it occurs in the school’s education program or activity.

Conclusion

This blog post describes the term sexual harassment under 34 C.F.R. § 106.30, including sexual assault, dating violence, domestic violence, and stalking, all of which are “sexual harassment” for Title IX purposes under the new Title IX Rule. (This blog post does not concern or affect how the Department enforces the Clery Act, as amended by the Violence Acting Women Act, or its implementing regulations.)

For the first time, OCR will enforce a legally binding definition of sexual harassment to include even a single instance of any of these serious forms of sex-based sexual harassment: quid pro quo harassment, sexual assault, dating violence, domestic violence, and stalking.  Previously, OCR analyzed whether such conduct was sufficiently “severe” or “pervasive” to be covered under Title IX.  No longer will OCR evaluate whether sexual misconduct of this nature meets a severe or pervasive threshold before Title IX protections are triggered.  Now, each of these forms of sexual misconduct will constitute a per se incident of sexual harassment.

If you have questions about the new Title IX Rule or require technical assistance, please contact T9questions@ed.gov.

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