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With the Title IX implementation date of August 14 fast approaching, your education institution must quickly assess policies and procedures in four major ways:
- Review and update sexual misconduct policies and procedures;
- Train staff on the updated policies and procedures and prepare key employees for new roles within the Title IX complaint process;
- Evaluate employment considerations including the intersection with an employer's Title VII obligations and with collective bargaining agreements ("CBAs"); and
- Communicate these updates to stakeholders, including students, staff, and parents.
Yes, by August 14. This checklist should help you address the main areas for compliance.
Sexual Misconduct Policies
Update existing policies in the following key areas:
Start with Definitions
(This may not be as simple as it sounds.)
Sexual Harassment
Because Title IX and Oregon law require different definitions of sexual harassment, policies must address both. Educational institutions will need to differentiate "sexual harassment" for the purposes of Title IX and "sexual harassment" for the purposes of Oregon law, hopefully without creating too much confusion for their communities.
Other Important Definitions to Add or Revise
- Complainant and Respondent
- Formal complaint versus informal complaint
Mandatory Reporters
Higher education institutions will need to determine which employees are mandatory reporters and which are not. For K-12 schools, all employees are mandatory reporters, which is consistent with Oregon law.
Oregon Law Definitions
Oregon law also requires higher education institutions to develop definitions for the following terms in consultation with their respective student governments:
- Anti-oppression
- Culturally-responsive
- Gender-responsive
- Trauma-informed
If institutions have already worked with their student governments to define these terms, they should review those definitions to ensure they do not conflict with Title IX regulations.
Update Procedural and Substantive Requirements
Include or update the following requirements to comply with Title IX regulations:
- Supportive measures.
- Notice to parties.
- Formal and informal resolution processes. Title IX regulations include very specific requirements for both formal complaints and informal resolution, including written consent.
- Requirement to dismiss complaints that do not meet the Title IX definition of harassment. Institutions may proceed under another section of the code of conduct and, under Oregon law, must proceed if the conduct meets the Oregon definition of sexual harassment.
- Standard of proof. Institutions may use either clear and convincing evidence or a preponderance of the evidence, but whichever standard is selected must be applied consistently to all Title IX complaints.
- Investigation and determination of complaints, sanctions, and appeals.
Review Grievance Procedures
Because Title IX requires specific, resource-intensive procedures for conduct meeting the federal definition of sexual harassment, institutions should determine whether to:
- Apply Title IX procedures to all sexual harassment complaints;
- Use Title IX procedures until a complaint is dismissed under Title IX and then transition to another process; or
- Adopt another compliant approach.
Prepare for Live Hearings
The new regulations require live hearings for all Title IX formal complaints at higher education institutions. Live hearings are optional for K-12 schools.
Among many other requirements, hearing procedures must:
- Allow parties to be represented by an advisor of their choice and assign an advisor if a party does not have one;
- Allow each party's advisor to cross-examine all witnesses; and
- Exclude statements from parties or witnesses who do not consent to live cross-examination.
Institutions should also consider:
- Developing rules of decorum;
- Accounting for situations where a party refuses to testify;
- Defining advisor roles and responsibilities; and
- Establishing rules of evidence.
Training
Train faculty, staff, and students on the new sexual harassment policies and procedures before the new academic year begins.
Provide specific training to employees responsible for reporting, investigating, deciding complaints, and hearing appeals.
Investigator Training
Investigators must understand conflicts of interest, timelines, relevance, bias, and how to prepare an investigative report.
Decisionmaker Training
Decisionmakers must understand and enforce rules for live hearings, including the roles of advisors, investigators, and parties; impartial decision-making; appropriate use of technology; evidentiary relevance determinations; and issuing written decisions consistent with Title IX.
Appeals Officer Training
Appeals officers must understand appeal grounds, timelines, and how to issue written appeal decisions.
Labor and Employment Considerations
Employee Complaints Under Title IX
Title IX regulations expressly apply to allegations of sexual harassment involving employees, including at-will and represented employees.
Employees are entitled to protections under both Title VII and Title IX.
Because Title VII and Title IX define sexual harassment differently, employers must comply with both laws. Institutions should review and update employment policies and procedures accordingly.
Collective Bargaining Agreements
Collective bargaining agreements must comply with Title IX requirements, including consistent standards of proof for student and employee complaints and required live hearings. Institutions may need to engage in interim bargaining to satisfy labor law requirements before the August 14 implementation date.
Communication
Institutions should prepare to communicate these changes to staff, students, parents, and other stakeholders.
Required Notice
Institutions must provide notice of Title IX policies to applicants for admission and employment, students, parents or legal guardians of K-12 students, employees, and unions or professional organizations with collective bargaining or professional agreements.
Training Materials
Institutions must make publicly available on their website all training materials used for Title IX coordinators, investigators, decisionmakers, and informal resolution facilitators.
Addressing Community Concerns
Many groups are concerned that the Title IX regulations will discourage reporting of sexual harassment and make institutional responses more difficult. Institutions should be prepared to encourage reporting and respond thoughtfully to these concerns.
How We Can Help
Our education law team will continue to support educational institutions as they implement these regulations. We are prepared to help your institution review policies, discuss compliance, and navigate the difficult decisions ahead.
