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COPYRIGHT © DOMINIC D’IMPERIO, ESQ., ALL RIGHTS RESERVED. THIS PRESENTATION IS PROTECTED BY COPYRIGHT. REPRODUCTION AND DISTRIBUTION OF THIS PRESENTATION WITHOUT WRITTEN PERMISSION OF THE AUTHOR IS EXPRESSLY PROHIBITED.

Dominic D’Imperio, Esq.

School Attorney and Labor Relations Specialist

Franklin-Essex-Hamilton BOCES

ddimperio@fehb.org

Title IX Training

Discrimination & Investigations

July 19, 2023

MASLA

2023 Summer Conference

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Agenda�Today’s Training & Review

Part 1: 8:30 to 10:00

Title IX Defined – Legal Rules and Requirements

Title IX Harassment Defined
Rules and Obligations
Title IX Specific Terms
Title VII and Title IX Intersections

Part 2: 10:15 – 11:30

Title IX – Implementation and Practice Recommendations

Investigation of Complaints-Legal Obligations and Requirements
Practical Considerations
Best Practices
Conclusions and Discussions

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Title IX Harassment Defined

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What is Title IX Harassment¹

Title IX prohibits sex discrimination in the programs and activities of all educational institutions receiving federal funding, including school-sponsored activities, school approved and/or funded activities or programs, and school sponsored or approved travel, where such locations or activities are under the substantial control of the institution
Title IX prohibits different treatment on the basis of sex in all aspects of a school’s education programs or activities with respect to both students and staff, where such differential treatment effectively prevents an individual from accessing the educational institution
Title IX prohibits retaliation against an individual for opposing or reporting discrimination, complaining about discrimination, or participating in a discrimination investigation.

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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What is Title IX Harassment¹

Title IX also can prohibit policies and procedures that disproportionately affect women or girls in an adverse way, even if those policies and procedures appear neutral.
Title IX requires schools to adopt policies and procedures that are important for the prevention and correction of sex discrimination.
Title IX also expressly covers dating violence, domestic violence, stalking, and unwanted/non-consensual sexual conduct as a form of Sexual Harassment

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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What is Title IX Harassment

Title IX regulations as amended on August 14, 2020, make clear that Sexual harassment is a form of sex discrimination covered by Title IX (and Title VII – more later).
Regulations include expansive definitions under federal law with overlap under New York State Law, which is in some areas more expansive
Sexual harassment is now defined under 34 C.F.R. §106.30 as conduct that occurs on the basis of sex that prevents a complainant’s right of equal access to the educational institution and falls under one or more of three categories

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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What is Title IX Harassment

The Final Rule defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize and “effectively deny” a complainant’s equal access to the educational institution that Title IX is designed to protect:.

Any instance of “Quid Pro Quo” harassment - an employee of the recipient institution conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
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
Any instance of conduct that qualifies as “Sexual assault” as defined under the Clery Act, “dating violence”, “domestic violence”

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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What is Title IX Harassment

The Final Rule utilizes the “effectively denies” standard from the Supreme Court’s decision in Davis v. Monroe, 526 U.S. 629 (1999)

Case involving peer sexual harassment between students
Intent of offender is irrelevant
so severe, pervasive, and objectively offensive, and that so undermines and detracts from the … educational experience, that the victim … are effectively denied equal access to an institution’s resources and opportunities.

The Final Rule removes language and standard for harassment where conduct only “limits” equal access to the institution’s resources and opportunities
The Final Rule as originally crafted in 2020 attempts to rely more directly on Supreme Court precedents in in Title IX cases like Davis, while also distinguishing any reliance on Title VII cases in the employment context

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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Where does Title IX apply

Sexual Harassment is defined as occurring in a School’s “Education Program or Activity” and “in the United States”
The Title IX statute applies to persons in the United States with respect to education programs or activities that receive Federal financial assistance. Under the Final Rule, schools must respond when sexual harassment occurs in the school’s education program or activity, against a person in the United States.

The Title IX statute and existing regulations contain broad definitions of a school’s “program or activity” and the Department will continue to look to these definitions for the scope of a school’s education program or activity.
Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house).

A school may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses, including providing supportive measures or pursuing discipline

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1. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

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Why is Title IX Harassment a Concern?

While sexual harassment is a concern for schools generally, it could be of particular concern in STEM areas or other programs where there are historically and/or frequently small numbers of female students in such courses or programs of study. Small numbers increase the potential that female students may become targets of harassment.
Under new and recently released guidance, Title IX also gender-based harassment as a form of discrimination as prohibited under New York State Law.
Harassing conduct based on sex or sex stereotypes may or may not still be barred, even if the harassment is not sexual in nature, but it is still prohibited under New York State Law.
Examples include:

A student harassing a fellow student by altering his/her lab results because of his/her sex.
A student harassing another student and refusing to be his/her lab partner in a physics class or CTE class because s/he thinks s/he will not be able to handle the work seriously because of his/her sex.
A teacher refusing to assign a partner to work with a female students because the teacher thinks the female student cannot/will not be able to handle the work seriously because of her sex

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Rules and Obligations

Title IX Policy Requirements

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Required Title IX Policy components:

Designate and authorize a Title IX Coordinator
Description of the role of the Title IX Coordinator.
Definition of sexual harassment for purposes of Title IX and a description of when a Formal Complaint can be filed.
Process for responding to a “Formal Complaint” (grievance process) that complies with Title IX regulations, including appeals for both the charging party and respondent.

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Title IX - Policy Requirements

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Required Title IX Policy components:

Requirement that the Title IX Coordinator, investigators, initial and appeal decision makers receive training as required by Title IX.
Description of the potential sanctions to be imposed upon a harasser where there is a determination that a complainant has been sexually harassed.
State the evidentiary standard to be used in all cases: “clear and convincing” or “preponderance of evidence.”

Under New York Human Rights law, contractors can also be accused of Sexual Harrassment

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Title IX - Policy Requirements

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Schools are required to comply with and make available the following procedural requirements, which are important for the prevention and correction of sex discrimination, in accordance with complaint procedures required to be adopted under 34 CFR § 106.8(c) and 106.45.

Publish a notice of nondiscrimination;
Designate a person to coordinate the school’s compliance with Title IX and notify all students and employees of the name or title and contact information for this person;
Adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints;
Provide support measures and remedies to persons alleged to be victimized by sexual harassment;
Resolve allegations of sexual harassment promptly and accurately under a fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment;
Prohibit retaliation; and
Effectively implement remedies for victims

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Title IX - Policy Requirements

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https://www.ny.gov/sites/default/files/atoms/files/MinimumStandardsforSexualHarassmentPreventionTraining.pdf

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Rules and Obligations

Title IX Publications and Notices

And Required Notices and Publications Under

New York Labor Law 201-g and Executive Law 296 et seq

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Publish a notice of nondiscrimination – “that the recipient does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by title IX and this part not to discriminate in such a manner. Such notification must state that the requirement not to discriminate in the education program or activity extends to admission (unless subpart C of this part does not apply) and employment, and that inquiries about the application of title IX and this part to such recipient may be referred to the recipient's Title IX Coordinator, to the Assistant Secretary, or both” (34 CFR § 106.8)
Schools are required to publish a notice of nondiscrimination in the following ways. (34 C.F.R. § 106.9);

The notice must be widely distributed to students, employees, AND prospective students and employees, and other relevant individuals.
The notice must state that inquiries concerning the application of Title IX may be referred to the school’s Title IX coordinator or to the federal Office for Civil Rights with information on how to contact the Title IX coordinator.
Notices must be in writing provided to all employees under NY LL 201-g

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Title IX – Notice of Nondiscrimination

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Designate at least one Title IX Coordinator (34 CFR 106.8(a))

Coordinator MUST be an employee of recipient – See DOE OCR Policy Guidance Portal, Office for Civil Rights Issues New Resource to Help Education Institutions Implement the Title IX Final Regulations - Part 2 (Jan. 15, 2021)¹
“Each recipient must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under this part, which employee must be referred to as the ‘Title IX Coordinator.’ Thus, the restriction placed on a recipient’s choice of a Title IX Coordinator is that the person must be the recipient’s ‘employee’.”¹

Provide that any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person's verbal or written report.
Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator

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Title IX - Publication and Procedures

1. https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-part2-20210115.pdf

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Each recipient must prominently display the contact information required to be listed for the Title IX Coordinator under paragraph (a) of this section and as part of the required policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook or catalog that it makes available to persons entitled to a notification under paragraph (a) of this section. (34 CFR § 106.8)
Persons entitled to notification of identity of Title IX Coordinator, include applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient.
The notice to persons entitled to notice must also include the following information about the Title IX Coordinator: name or title, office address, electronic mail address, and telephone number.
School’s policy is also required to address the process for handling Formal Complaints made under Title IX, referred to as a “grievance process.” – Similar under New York Law. Must identify the filing, forms, persons to file complaints to, and the overall process. (34 CFR § 106.8)

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Title IX - Publication and Procedures

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Current District policies that could address sexual harassment now:

Policy prohibiting harassment of students under the Dignity for All Students Act.
Code of Conduct Policy.
Policies proclaiming nondiscrimination against students
Policy prohibiting sexual harassment of employees, interns, applicants for employment, and independent contractors under the NY Law.
New York Required Sexual Harassment required policy

Coordinate existing policies – to make certain that if a Formal Complaint is filed under the Title IX policy, it must be handled in accordance with the process under a New Unified Title IX and not under any other policy.
Consider how principals, Dignity Act Coordinators, Human Resources personnel, and the Title IX Coordinator need to communicate among themselves regarding reports of sexual harassment.

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Title IX - Publication and Procedures

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Rules and Obligations

Title IX Investigation Requirements

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Title IX–Investigation Requirements

Title IX Final Regulations require the following:

Respond promptly when any school employee has notice of sexual harassment, including sexual assault
Title IX extends to all aspects of a school’s education program or activity and applies to any activity controlled or operated by the school, or any building owned or controlled by school
If a survivor (accuser/complainant) chooses to participate in a grievance process, accusers cannot be inappropriately being asked about prior sexual history (also known as "rape shield" protections), and a survivor is not be required to divulge any medical, psychological, or similarly privileged records.
A survivor never has to come face-to-face with the accused during a hearing, and an accused is never allowed to personally ask questions of a survivor.
Survivors are protected against retaliation when they choose to report sexual misconduct or not, file a formal complaint or not, participate in a grievance process or not.
Survivors are protected against bullying or harassment throughout the grievance (complaint and investigation) process

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Title IX–Investigation Requirements

Schools must take immediate and appropriate action to investigate or otherwise determine what happened.
The inquiry must be prompt, thorough, and impartial.
Procedures must provide equal opportunity for both Parties to appeal a determination and decision
If harassment occurs, schools must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent it from happening again to the victim or to others.
For Example:

If a student files a sexual harassment complaint with the school against her teacher and the school determines that a hostile environment has been created, it must take steps to end the harassment, eliminate the hostile environment, and prevent its recurrence. Potential remedies should include allowing the student to have a new class or teacher.
If a school is made aware that a particular teacher denigrates the answers that are provided by female students but not similar answers by male students and this causes a hostile environment, it must take steps to end the conduct, eliminate the hostile environment, and prevent its recurrence. This may include speaking with that teacher and providing appropriate training.

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Title IX–Investigation Requirements

Title IX can also apply in the context of Employment

in the same manner as Title VII

Schools may not discriminate on the basis of sex in employment or recruitment, including but not limited to hiring, promotion, consideration of and award of tenure, grants of leave, benefits, and selection and financial support for training. (34 C.F.R. § 106.51)
Schools are prohibited from applying policies or employment actions concerning the marital, parental, or family status of employees or applicants that treat persons differently based on sex, or that are based on whether the employee or applicant is the head of household or principal wage earner. (34 C.F.R. § 106.57)
A school cannot base a hiring or promotion decision for a teacher on stereotypes about a woman’s ability to perform her job because she has/will have/may have children. (34 C.F.R. § 106.57)

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1. https://sites.ed.gov/titleix/policy/

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Title IX Specific Terms

Definition of Harassment

“Based on Sex”

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Title IX in the context of Title VII case law – The Supreme Court’s Decision in Bostock¹

Holding: an employer violates Title VII, which makes it unlawful to discriminate against an individual “because of” the individual's sex, by firing an individual for being homosexual or being a transgender person.
So long as the plaintiff 's sex was one but-for cause of that decision, that is enough to trigger the law. Citing Nassar, 570 U.S. at 350, 133 S.Ct. 2517.
Congress has moved in the opposite direction [of narrow liability], supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant's challenged employment practice. Civil Rights Act of 1991, § 107, 105 Stat. 1075, codified at *1740 42 U.S.C. § 2000e–2(m).
“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII.” Id., 140 S.Ct. at 1747.
“We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Id.

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1. Bostock v. Clayton County, 140 S.Ct. 1731 (June 15, 2020)

Title IX–Scope of Title IX�Redux and Reversed

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Title IX in the context of Title VII case law – the resistance to Bostock¹

OCR’s Letter of Impending Enforcement Action dated May 15, 2020²

Connecticut Interscholastic Athletic Conference (CIAC) promulged rules allowing transgender athletes to compete based on gender identity rather than biological sex
Female Student Athletes filed OCR complaints under Title IX claiming they were deprived of competitive opportunities based on sex for being forced to compete against transgendered athletes who were biologically male
OCR referred to DOJ for civil enforcement and pursuit of claims against the CIAC and the Glastonbury Board of Education³

OCR’s Letter of Impending Enforcement Action dated August 31, 2020²

OCR specifically disavowed the application of the Supreme Court’s decision in Bostock asserting it “does not alter the relevant legal standards” under Title IX’s regulations and that on its face, Bostock only applies in the context of Title VII given the differing statutory authorities and case law

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Bostock v. Clayton County, 140 S.Ct. 1731 (June 15, 2020)
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a3.pdf

Title IX–Scope of Title IX�Redux and Reversed

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Title IX in the context of Title VII case law – the resistance to Bostock¹

OCR’s Withdrawal Letter of Impending Enforcement Action dated February 23, 2021¹

OCR determined “the Revised Letter was issued without the review required for agency guidance documents that set out policy on a regulatory issue” and “Revised Letter’s statement of OCR’s interpretation of Title IX and its implementing regulations should not be relied upon in this or any other matter.”

OCR Notice of Interpretation dated June 16, 2021 – Published to the Federal Register on June 22, 2021²

“Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity.”

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https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a5.pdf, and https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/index.html
Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed.Reg. 32367 (June 22, 2021)

Title IX–Scope of Title IX�Redux and Reversed

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Title IX in the context of Title VII case law – the resistance to Bostock¹

OCR and DOJ release a joint notice flyer “Confronting Anti-LGBTQI+ Harassment in Schools” dated June 23, 2021¹

Reiterated OCR’s determination regarding the withdrawal of the revised enforcement letter in the CIAC case that the “Revised Letter’s statement of OCR’s interpretation of Title IX and its implementing regulations should not be relied upon in this or any other matter.”

OCR Releases “Questions and Answers on the Title IX Regulations on Sexual Harassment” dated July 20, 2021²

Provides comprehensive Q&A regarding all the requirements under Title IX from new regulations, including most recent interpretation on applicability to gender status, gender identity, etc in light of Bostock

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https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf
https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

Title IX–Scope of Title IX�Redux and Reversed

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Title IX Specific Terms

Prohibited Retaliation

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Title IX–Prohibited Retaliation

Title IX prohibits retaliation against any individual for:

Opposing or reporting discrimination, complaining about discrimination, or participating in a discrimination investigation.
Schools are prohibited from retaliating against an individual because the individual has asserted a right protected by Title IX; made a Title IX complaint or participated in a Title IX investigation, hearing, or proceeding; or protested sex discrimination. (34 C.F.R. §106.71; 34 C.F.R. §100.7(e))
If a student files a complaint alleging that a school discriminated on the basis of sex concerning course work, grades, access to extra-curricular activities, etc, the school must ensure that the student is not subjected to retaliation.
If an employee alleges that the school discriminates against individuals in its decisions concerning employment on the basis of sex, including but limited to tenure decisions; classroom or course assignments; approval of time off additional pay opportunities (advisors/coaches/professional development time) the school must ensure that the employee is not subjected to retaliation.

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1. https://sites.ed.gov/titleix/policy/

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Title IX–Prohibited Retaliation

Title IX prohibitions on retaliation also include:

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation. (34 CFR § 106.71 (a))
The recipient of a complaint must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.

Specific Circumstances under § 106.71

(1) The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under this section.
(2) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation prohibited under paragraph (a) of this section, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

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Title IX Specific Terms

Grievance Process

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Title IX– “Grievance” Process

34 CFR § 106.45 - Title IX Grievance (complaint) procedures – Similar to the older requirements and would encompass requirements consistent with NYS law

Provide Notice of Allegations to accused of potential charges of sexual harassment upon receipt of a formal complaint

Notice must provide sufficient details with sufficient time for respondent to prepare for any interview.
Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under § 106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence.
The written notice must inform the parties of any provision in the recipient's code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process

If NEW claims or allegations arise during course of the investigation, a NEW “Notice of Revised Allegations” must be issued to the accused for those allegations.

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Title IX– “Grievance” Process

34 CFR § 106.45 – Grievance and Complaint Procedures:

Dismissal of Complaints

If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in § 106.30 even if proved, did not occur in the recipient's education program or activity, or did not occur against a person in the United States, then the recipient must dismiss the formal complaint with regard to Title IX
The recipient may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; the respondent is no longer enrolled or employed by the recipient; or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Upon a dismissal, the recipient must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties

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�

Title VII and Title IX Intersections

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What is Title VII Harassment

General Anti-Discrimination Civil Rights Laws

Title VII of the Civil Rights Act of 1964 (Title VII):

Is the major federal law prohibiting discrimination in employment.
Title VII prohibits discrimination based on race, sex, color, religion, national origin, and retaliation.

The Equal Pay Act of 1963 (EPA):

Protects men and women who perform substantially equal work from sex-based wage discrimination.

The Age Discrimination In Employment Act of 1967 (ADEA):

Protects employees and job applicants who are 40 years of age or older from employment discrimination based on age.

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What is Title VII Harassment

SEX BASED HARASSMENT

Title VII of the Civil Rights Act of 1964, as amended at 42 USC §2000e et seq
New York State Executive Law §296 et seq (New York Human Rights Law)
Prohibits unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature, all of which constitute “sexual harassment” when:

Submission to such conduct is made explicitly or implicitly a condition of an individual’s employment (Quid Pro Quo)
Submission to or rejection of such conduct is used as a basis for an employment decision affecting the employee (Quid Pro Quo plus); or
The harassment has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an environment which is intimidating, hostile or offensive to the employee (Hostile work environment)

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What is Title VII Harassment

Unwelcome or offensive conduct in the workplace that constitutes Harassment under Title VII is a form of discrimination that is:

Based on sex (including sexual orientation, pregnancy, and gender identity), race, color, national origin, religion, age, disability, and/or genetic information; AND
Detrimental to an employee’s work performance, professional advancement, and/or mental health, or conduct that denies or limits employment-based participation or benefits.

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Unwelcome or offensive conduct in the workplace:

Ranges of Possible Harassment includes:

Offensive jokes, slurs, epithets or name calling
Offensive objects or pictures
Unwelcome touching or contact
Physical threats or assaults
Ridicule, mockery, or put-downs
Constant or unwelcome questions about an individual’s identity to personal information
Undue and unwanted attention

For Harassment in general, and particularly sexual harassment, it is IRRELEVANT whether or not conduct is motivated by sexual desire.
The ONLY issue: Are members of different sexes/races/ethnicities treated differently on account of their sex/race/ethnicity?

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What is Title VII Harassment

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For Prohibited Sexual Harassment Under Title VII

(and Title IX)

IS IT SEXUAL HARASSMENT?

Unwanted and unwelcome.
Interferes with your performance at work or school; creates intimidating or hostile environment.
Could be dangerous.
Causes uncomfortable feelings.
Designed or does make victim feel powerless.
Negatively influences work performance.
Sexual in nature.

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What is Title VII Harassment

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TITLE VII does not prohibit all conduct of a sexual nature…it only forbids conduct which becomes a term or condition of employment.

Unwelcomed Conduct:

Acquiescence in sexual conduct may not mean that the conduct is welcome.
The charging party need not have confronted her offending supervisor where she feared retaliation, so long as her actions and comments demonstrated that the conduct was unwelcome.
Standard – Plaintiff can not prevail if s/he unreasonably refused to take advantage of corrective measures.

Quid Pro Quo Conduct:

Occurs when submission to unwelcome sexual conduct is made an explicit or implicit term or condition of an individual’s employment.

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https://www.diversity.va.gov/training/files/eeo-employees.ppt

What is Title VII Harassment

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Hostile Work Environment

The day-to-day working environment is polluted with verbal or physical abuses.
Unwelcome sexual conduct unreasonably interferes with job performance or creates an intimidating, hostile or offensive work environment.

Factors Considered:

Frequency of the conduct.
Offensive utterances.
The more severe the conduct, the less pervasive it must be.
Environment
Did the conduct occur in view of others?
Consequences of conduct upon plaintiff
Plaintiff’s unreasonable delay in reporting harassment

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What is Title VII Harassment

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Employer Requirements regarding Title VII Claims and Investigations

Employers must take timely and effective action to prevent sexual harassment.
Employers and managers may be held personally liable for damages due to harassment.
A “reasonable woman” standard MAY be used by the court to identify sexual harassment.
Ellison v Brady (1991): Unless the conduct is quite severe, isolated incidents of sexual conduct or statements do not create a hostile environment. BUT, they do create an obligation on the part of a concerned employer to prevent a recurrent of the offensive act or statement

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What is Title VII Harassment

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Remedial Corrective Actions - Fuller v. Oakland (1995)

Must be reasonably calibrated to stop the conduct, to correct the impact of the conduct, and to prevent the conduct from reoccurring
Remedial and/or Corrective Action will be evaluated in the context of:

Severity of conduct
Pervasiveness of conduct
Likelihood for conduct to be repeated
Courts will 2nd guess you … especially if the conduct did continue

Poor or Failed corrective actions include

Ignore a complaint or problem
Deviate from or ignore your policy
Discuss with the violator over coffee
Put the victim and accused in a room to “sort it out”
Punish/Retaliate against the victim
Accept recantations blindly or half hearted investigations - “Oh, that’s just Joe”
Pass investigation “up the chain” without legal or follow-up

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What is Title VII Harassment

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RETALIATION

Elements of a Charge for Retaliation under Title VII

Plaintiff filed a charge of harassment, or engaged in protected activity in connection to a complaint
Plaintiff’s employer subsequently took adverse employment action against the plaintiff – much broader than what is required to sustain a complaint for hostile environment or discrimination, can be any employment related action
The adverse action was causally linked (in time, scope, or proximity) to the plaintiff’s protected activity

Once this prima facie showing of retaliation is made by the plaintiff, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions
If the employer meets that burden of a legitimate, nondiscriminatory reason for its actions, the presumption of retaliation disappears UNLESS the employee can show that the employer’s reason was simply pretext and the Employer’s decisions were motivated by discriminatory/retaliatory animus

What is Title VII Harassment

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RETALIATION

Retaliation Examples Include:

Unwanted/undeserved lower performance reviews
Transfers, duty changes, taking away or denying privileges
Discipline/discharge
Ridicule/blaming for work problems
Increased counseling, criticisms, or oversight without a change in work performance
Continuing/escalating the prohibited conduct
Threats
Ostracism/exclusion in a way that creates an intimidating, stressful environment

Title VII (like Title IX) prohibits retaliation against an individual for opposing or reporting discrimination, complaining about discrimination, or participating in a discrimination investigation.

What is Title VII Harassment

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�

BREAK

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�

Investigations of Complaints

Legal Obligations and Requirements

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Investigation of Complaints

Initial Referral and/or Complaint
Review of Policies & Procedures
Interview of Complainant
Requests for Documentary Evidence
Fact Witness Interviews
Interview of Accused
Final Evidentiary Follow-up
Preliminary Report, Party Reviews, and Questions
Final Decision & Outcome Letters

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Initial Referral and/or Complaint

Immediately upon receipt of Complaint, do the following:

Written Complaints-

Is it signed and/or dated?
Is it on District provided complaint form?
Outline the details, facts, allegations
Is there an alleged violation on the face of the complaint?
Conduct alleged – duration, severity, scope, relative employment positions of the accused vs the complainant?

Verbal Complaints-

Still have an obligation to investigate
Who received the complaint, when, how?
Have the recipient memorialize the nature of the complaint as completely and thoroughly as possible
See above regarding written complaints

Outline any clearly identified issues, concerns, topics
Create a potential witness list
Create a list of documents to request
IMMEDIATELY request to secure any potential video evidence before it is lost

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Notice of Allegations – Pre-Investigation

Written Notice of Allegations – Receipt of FORMAL WRITTEN COMPLAINT

Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties, INLCUDING the accused and the complainant:
Notice of the recipient's grievance process that complies with this section, including any informal resolution process.
Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview.
Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under § 106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence that is not otherwise protected.
The written notice must inform the parties of any provision in the recipient's code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

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Review of Policies & Procedures

KNOW YOUR DISTRICT’S SEXUAL HARASSMENT AND TITLE IX POLICIES
Who is the appointed Title IX Coordinator?
Interview and/or confirm District’s standard procedures
Confirm District’s standard forms in use and reporting process
Policy Definitions vs. Legal Definitions

Is the District’s Policy broader than legal requirements
Sexual Harassment
Gender-based harassment
Hostile Work Environment

Does the Policy define unacceptable conduct?

Conduct that applies to students and employees alike
Sexual and/or gender based harassment are likely treated the same

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Review of Policies & Procedures

Does the Policy provide guidelines for determining what constitutes Sexual Harassment?
Not all unacceptable conduct with sexual connotations may constitute sexual harassment.
In many cases (other than quid pro quo situations where the alleged harasser offers academic or employment rewards or threatens punishment as an inducement for sexual favors), unacceptable behavior must be sufficiently severe, pervasive and objectively offensive to be considered sexual harassment.
If the behavior doesn’t rise to the level of sexual harassment, but is found to be objectionable behavior, it may not constitute “Harassment” but could still be a violation of District Policies and/or the Code of Conduct as “harassment”, i.e., unprofessional or inappropriate conduct.

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Review of Policies & Procedures

Does the Policy provide guidelines for determining what constitutes Sexual Harassment?
In evaluating the totality of the circumstances and making a determination of whether conduct as alleged constitutes sexual harassment, the individual investigating the complaint should consider:

1. the degree to which the conduct affected the ability of the student/employee to participate in or benefit from his or her education or altered the conditions of the student's learning environment or altered the conditions of the employee's working environment;
2. the type, frequency and duration of the conduct;
3. the identity of and relationship between the alleged harasser and the subject of the harassment (e.g., sexually based conduct by an authority figure is more likely to create a hostile environment than similar conduct by another student or a co-worker);
4. the number of individuals involved;
5. the age and sex of the alleged harasser and the subject of the harassment;
6. the location of the incidents and context in which they occurred;
7. other incidents at the school; and
8. incidents of gender-based, but non-sexual harassment.

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Review of Policies & Procedures

Policy Guidelines for Investigating Complaints?

Generally, reviews should begin within 5 working days of the initial complaint with the review be completed within 30 days, absent extenuating circumstances
Requirement to investigate verbal complaints as well as written complaints
Informal vs. Formal investigation procedures
Rules regarding parental involvement for student complaints
Requirements regarding notifications or outcome letters for complainants and accused
Range of proscribed penalties and/or approved remedial actions
Maintenance of complaint records

Review the Code of Conduct
Review any other related “harassment” policies & applicable collective bargaining agreements for issues that may fall outside the scope of your Title IX Policy

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Interview of Complainant

After review of the policy and complaint (memorialized verbal and written complaints), interview Complainant
Use an initial opening script, provide a copy of the written script to the interviewee (separate script for complainant, witness, accused)
Try to conduct the interview within 5 days of the initial complaint, the sooner the better
Recommendations

Recording interviews – yes or no?
Union representatives – yes or no?
Attorney’s or outside district personal participating in the interview process – yes or no?
Interview scripts to each interviewee - have them sign and date at the bottom as acknowledgement, and provide a copy for their records

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Interview of Complainant�Written Complaints

Start the interview – ASK THESE TWO IMPORTANT QUESTIONS

Are you taking any medications today that would prevent you from understanding my questions and providing truthful and complete answers?
Are you suffering from any medical conditions

With a WRITTEN complaint

Try to narrow down specific details of each and every allegation or incident – Who, What, Where, When, Why
Identify witnesses, date and time, location and circumstances, and the specific language used or conduct that occurred

At the end, ask –

IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD THAT I HAVE NOT ASKED YOU ABOUT

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Interview of Complainant�Verbal Complaints

Start the interview – ASK THESE TWO IMPORTANT QUESTIONS

Are you taking any medications today that would prevent you from understanding my questions and providing truthful and complete answers?
Are you suffering from any medical conditions

IF there was a VERBAL complaint

Detail the questions /responses by typing into a word document on laptop
Narrow the allegations – Who, What, Where, When, Why
Identify witnesses, date and time, location and circumstances, and the specific language used or conduct that occurred

At the end, ask –

IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD THAT

I HAVE NOT ASKED YOU ABOUT

THEN

At a statement to the end of the notes:

“The above notes are an accurate statement as to the events described and the undersigned swears they are true to the best of their recollection”

Print out a copy of the notes from the interview, Ask the complainant to review the notes of the interview, sign and date the notes

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Initiation of a “Formal” Complaint�Verbal Complaints

For Verbal Complaints, if the complainant does not want to submit a written complaint, the Title IX Coordinator can sign the written complaint on behalf of the District as the “complainant” if the Title IX coordinator believes there is sufficient evidence of a potential claim of violation of Title IX
Formal Complaint moves forward with potential “victim” as a witness
Normal process followed from investigation through conclusion
Does not prohibit use of “informal” process for resolving potential Title IX claim

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Requests for Documentary Evidence�Following interview of Complainant

Immediately request and secure any video evidence as soon as possible to ensure retention
Request and review a copy of the personnel file/student file of complainant
Request and review a copy of the personnel file/student file of accused
Request and review a copy of the personnel file/student file of an critical fact witness
Where necessary, interview any administrator/supervisor not involved with the substance of the complaint regarding general work history of the complainant and the accused
Use the complaint to drive the document/evidence requests

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Fact Witness Interviews

Start the interview – ASK THESE TWO IMPORTANT QUESTIONS

Are you taking any medications today that would prevent you from understanding my questions and providing truthful and complete answers?
Are you suffering from any medical conditions Use an initial opening script, provide a copy of the written script to the interviewee

Try to conduct fact interviews within 2 weeks of the complainant’s interview, the sooner the better

Emphasis CONFIDENTIALITY and NO RETAILIATION
Who, What, Where, When, Why – Challenge with evidence, records, video, etc.
Inform the witness that dishonesty can be grounds for discipline if the witness is evasive, try cooperation
Contemporaneously memorialize the witnesses testimony

At the end, ask –

IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD THAT

I HAVE NOT ASKED YOU ABOUT

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If the witness is lying or less than truthful, attempt to redirect them to provide truthful answers
If necessary, suspend the interview and reschedule with a union representative present, provide notices of Weingarten & Garrity rights where necessary
Recommendations

Recording interviews – yes or no?
Union representatives – yes or no?
Attorney’s or outside district personal participating in the interview process – yes or no?
Interview scripts to each interviewee - have them sign and date at the bottom as acknowledgement, and provide a copy for their records

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FACT WITNESS INTERVIEWS

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Update Request for Documentary Evidence – Re-interviews as needed

Request updated evidence as necessary based on interviews
Conduct re-interviews for any discrepancies or clarifications between competing witness statements
Review interview notes to drive any new or updated document/evidence requests
Update any evidence summaries and timelines as needed

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Revised Notice of Allegations

Issue a New Written “Notice of Revised Allegations”

Upon review of evidence, prior to interview of Respondent, review Notice of Allegations
Updated facts from records, witness interviews
Preserve records, videos, evidence for Respondent accused
Provide new notice to both complainant and accused
Should occur PRIOR to interview of accused
Provide with sufficient time for accused to have a representative present as required under Title IX

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Interview of Accused

Should be the LAST interview conducted
Consider using a companion to take notes so that you can concentrate on the interviewing and questioning
Start the interview – ASK THESE TWO IMPORTANT QUESTIONS

Are you taking any medications today that would prevent you from understanding my questions and providing truthful and complete answers?
Are you suffering from any medical conditions

Use an initial opening script, provide a copy of the written script to the accused

Weingarten Rights explicitly stated
Garrity Rights where necessary explicitly stated
CADET Rights where available explicitly stated
Any waiver of union representation should be in writing signed by the employee –

Employee knowing and freely waives their right to union representation for an interview with the employer, and recognizes that anything the employee says during such interview can be use by the employer for disciplinary purposes

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Interview of Accused

Ask specific questions about the facts and nature of the allegations, about who, what, where, when, why
If the accused denies any claims, ask them why someone would provide a different story from what the accused is stating
Press the accused on any inconsistencies
Present and review evidence with the Accused
Ask the accused about any evidence

Review Video/Audio recordings
Review documentary evidence
Be specific in your factual questions

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Interview of Accused

Regardless of Weingarten, Garrity, or CADET Rights, ASK EVERY QUESTION
Send a message to the accused about the nature of the allegations, strength of the District’s facts and evidence
For the benefit of a union representative to advise the accused
End by EMPHASISING

CONFIDENTIALITY
NO RETALIATION
NO COMMENTS/CONTACTS WITH THE COMPLAINANT ABOUT THE NATURE OF THE COMPLAINT OR ALLEGATIONS

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Final Evidentiary Follow-up

Re-update any requests for evidence or records as necessary
Request updated evidence as necessary based on interviews
Conduct final round of re-interviews for any discrepancies or clarifications between competing witness statements and accused
Review interview notes to drive any new or updated document/evidence requests
Review final facts with Title IX Policy, other Board Policies, Code of Conduct, and Legal Standards

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Final Evidentiary Follow-up

Create timeline of events and circumstances
Organize documents and evidence chronologically based on timeline
Notate timeline with supporting interview statements/evidence
Number and order any supporting documentation to be included in final report
Prepare draft Executive Summary (no more than 2 pages) of the what a preliminary review of the evidence shows relative to the claims

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Preliminary Draft Report & Conclusions

Should be marked CONFIDENTIAL and, where possible, ATTORNEY CLIENT PRIVILEGED
Report Details and Specifics

Background – Initial referral and credentials
Executive Summary – Summary of Complaint & Findings
Investigation - Chronological Order of evidence

Initial Complaint
Statement of the Allegations
Applicable Board Policies
Interviews
Documentary Evidence and Records
Conclusions and Findings
Possible Recommendations for Outcomes

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Preliminary Draft Report & Conclusions

Attach relevant and necessary documents, communications, as Appendices to the Final Report
Provide Draft Outcome letters for review by the District/Board of Education
Provide range of recommendations based on findings and conclusions
Superintendent and/or the Board of Education are the final decisions makers
Title IX Coordinator/Officer only makes recommendations, is NOT the decision maker in the process

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Preliminary Draft Report & Conclusions to Final Report and Conclusions

Prior to completion of the investigative report, the recipient must send to each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy - 34 CFR 106.45(b)(5)(vi)
Parties (complainant/victim & accused) must have at least 10 days to submit a written response, as well as pose any written questions either Party would like the other Party/witnesses to respond - 34 CFR 106.45(b)(5)(vii), (b)(6)(ii)
The recipient must make all such evidence subject to the parties' inspection and review available for inspection as part of draft report;
Title IX Coordinator may pass on written questions from the Parties and solicit responses from opposing Parties, or explain to the proposing party any decision to exclude a question as not relevant- 34 CFR 106.45(b)(6)(ii)

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Preliminary Draft Report & Conclusions to Final Report and Conclusions

Parties can refuse to response to written questions, and may be construed as a refusal to submit to “cross-examination”

Under Regulations, refusal to submit to cross examination in a live hearing required exclusion of refusing Parties’ statements and testimony – 34 CFR 106.45(b)(6)(i)
Regulation invalidated and vacated in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir.)
Not applicable to elementary/secondary schools

Title IX Coordinator must consider all Parties feedback, questions, and responses prior to completion of the investigative report

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Preliminary Draft Report & Conclusions to Final Report and Conclusions

Title IX Coordinator prepares a Final investigative report and recommendation for Decision Maker
Investigative report must

fairly summarizes relevant evidence, responses;
Summarize the relevant District’s policy;
Explain the basis for finding of responsibility or no responsibility; and
Make a recommendation as to the final outcome

Decision Maker must review Investigative report and Recommendations
Final Decision based on Decision Maker’s independent review of the totality of report, evidence, and conclusions
Final Report and Recommendations MUST include all elements of any final conclusions and recommendations – CANNOT BIFURCATE LIABILITY AND PENALTY

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Decision Makers and Outcome Letters

Issuance of Outcome Letters – Required as part of the process for Complainant and Accused – Comes from Final Decision Maker - 34 CFR 106.45(b)(7)(ii)
Complainant Outcome Letters – One to each complainant and determinations must be provided simultaneously
Purpose of the final outcome letter – Once Approved

Notify the conclusion of the investigation
Summarize the nature of the complaint
Provide a statement of findings and outcomes

Outcome letters are approved by the Recipient’s (school district’s) Final Decision Maker and must be issued by someone other than Title IX Coordinator
Potentially means the Superintendent or Board, or their Designee where appropriate

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Decision Makers and Outcome Letters�Federal Code and Rules

34 CFR §106.45(b)(7) – Formal Grievance (Complaint/Investigation) Process

The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. To reach this determination, the recipient must apply the standard of evidence described in paragraph (b)(1)(vii) of this section.
The written determination must include -

(A) Identification of the allegations potentially constituting sexual harassment as defined in § 106.30;
(B) A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient's code of conduct to the facts;
(E) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient's education program or activity will be provided by the recipient to the complainant; and
(F) The recipient's procedures and permissible bases for the complainant and respondent to appeal.

The recipient must provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
Title IX Coordinator is responsible for effective implementation of any remedies as determined by the Final Decision Maker

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Decision Makers and Appeals�Federal Code and Rules

34 CFR §106.45(b)(8) – Formal Grievance (Complaint/Investigation) Process & Appeals

Both Parties must have a right to appeal a determination regarding responsibility or dismissal of a formal complaint or any allegations therein, on the following bases:

(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.
(D) Or on any other basis the District deems appropriate.

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Decision Makers and Appeals�Federal Code and Rules

34 CFR §106.45(b)(8) – Formal Grievance (Complaint/Investigation) Process & Appeals

As to all appeals, the District must

(A) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal and the rationale for the result; and
(F) Provide the written decision simultaneously to both parties.

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�

Practical Considerations

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Pitfalls and Obstacles

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
This provision, which is enforceable through an implied private right of action, was enacted to supplement the Civil Rights Act of 1964's bans on racial discrimination in the workplace and in universities. Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994).
As such, it is important to note that the relevant conclusions and findings here apply to this context as an employment matter, the analysis and evaluation under Title IV and Title IX would carry equal weight.

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Pitfalls and Obstacles

“The law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). A hostile work environment exists ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment’.” Harris v. Forklift Systems, Inc, 510 U.S. 17, 21 (1993).
Conduct that is “merely offensive” and “not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview.” Id.

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Pitfalls and Obstacles

Section 703(a) sets forth Title VII's core anti discrimination provision in the following terms:

“It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.”

Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006), citing 42 USC § 2000e–2(a).

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Pitfalls and Obstacles

“The anti retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. … Courts … have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. … a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’

…

The anti retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, and their employers.”

Burlington Northern, 548 U.S. at 62-63, citing Robinson v Shell Oil Co., 519 U.S. 337, 346 (1997).

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Pitfalls and Obstacles

Stated differently, while sexual harassment is typically based on pervasive and repeated objectively sexual or gender related conduct creating a hostile work environment or results in an adverse employment action, an isolated incident of harassment may be so severe as to rise to the level of creating an objectively hostile work environment.
Though Title IX (and Title VII) applies to the workplace, and generally to employees and workspaces over which the employer exercises managerial control, it does not apply to “non-employees” over which management has no control and where management does not approve or allow access or harassing conduct to take place

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Pitfalls and Obstacles

Liability for retaliation is MUCH BROADER than liability for Harassment or Hostile Work Environment
You can have a finding of no Harassment, but still be liable for retaliation
Retaliation can be any adverse workplace action

Undeserved negative evaluation
Change in work assignment
Change in work location
Increased counseling memorandums

Supervisors and managers should be very wary of any work place decisions in close temporal proximity to a complaint

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Pitfalls and Obstacles

Harassment vs. harassment
Harassment - Constitutional or Statutory
harassment – Unprofessional conduct, Code of Conduct violations, workplace civility
Two very different standards, responsibilities, and outcomes
Handled as very different matters, different standards of proof, different outcomes and responsibilities

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Best Practices

Regular Sexual Harassment & Hostile Work Environment Training for Supervisors and Staff – Legally required
Regular review of policies and procedures
KEEP SEPARATE “Harassment” and “harassement”
Proper Training for Title IX Officers – Legally required
Standardized Reporting Forms – New York State Law
Clear procedures for investigating complaints – New York State Law
30 Day process from complaint to findings and outcome

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Additional Resources

Summary of Major Provisions of the Department of Education’s Title IX Final Rule Released August 2020
OCR FAQ - Part 1: Questions and Answers Regarding the Department’s Title IX Regulations dated January 15, 2021
OCR FAQ - Part 2: Questions and Answers Regarding the Department’s Title IX Regulations dated January 15, 2021
Letter to Educators on Title IX’s 49^th Anniversary Notice of Language Assistance dated June 23, 2021
Joint Department of Justice and Department Education Notice: Confronting Anti-LGBTQI+ Harassment in Schools, a Resource for Students and Families dated June 23, 2021
OCR Question and Answers on the Title IX Regulations on Sexual Harassment dated July 20, 2021

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THANK YOU

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