Does Title IX Include Harassment?
| | Title IX
In 1972, the U.S. government enacted new laws to protect equal opportunities in education by prohibiting discrimination based on sex. These laws and associated regulations and interpretations are generally all referred to under the heading of Title IX.
The language of Title IX directly refers to discrimination but makes no mention of harassment. However, interpretations over the years have made it very clear that the law prohibits sex and gender-based harassment. Title IX discrimination lawyers know what that includes according to the most recent regulatory pronouncements and judicial decisions. However, it is important to remember that judicial interpretations often expand or contract the applications of federal laws according to political trends, so it is a good idea to consult a Title IX attorney for their specific application in your particular case.
How Harassment Became Part of the Title IX Scheme
In the years shortly after the passage of the laws containing Title IX, most of the focus centered on its application to athletic programs. Requiring equal provisions for women’s athletics called for a massive shift in the allocation of resources, particularly at the college level. However, the law had been created not specifically for athletics but to ensure equal rights in all aspects of education and to plug gaps left by earlier anti-discrimination laws.
Later in the decade, students and faculty started to bring lawsuits alleging that sexual harassment was a form of discrimination banned by Title IX. This movement coincided with other judicial attempts to make harassment a form of illegal discrimination under the Civil Rights Act of 1964.
Over time, the U.S. Department of Education adopted judicial interpretations as more formal policies. In an April 2011 advisory letter, for instance, the Department’s Office for Civil Rights explained that “sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination.” While this letter was officially rescinded because of other contents, Title IX discrimination lawyers see that this justification generally remains in force, and it often leads to an evaluation of whether harassment is sufficient to interfere with educational opportunities when determining if a situation is actionable under Title IX.
New Definition of Harassment for Title IX Purposes
In 2020, Department of Education officials released new rules defining Title IX harassment and establishing due process safeguards for respondents in Title IX cases. Harassment is defined to include three types of behavior that infringe on the equal right to education. These include:
- Any kind of quid pro quo harassment committed by a school employee
- Unwelcome (sex-based) conduct that a “reasonable person” would find sufficiently severe, pervasive, and objectively offensive that it would interfere with their access to education
- Sexual assault, dating violence, domestic violence, or stalking
The types of violent conduct that fall under the new official definition of harassment are often treated separately. The terms “assault” and “stalking” are defined in federal criminal statutes, and domestic and dating violence is often now referred to by Title IX discrimination lawyers as intimate partner violence.
Quid Pro Quo Harassment
The Latin term quid pro quo (“this for that”) is used in the Title IX context to refer to situations where someone in authority, such as a faculty member, offers a benefit to a student with the expectation that they will receive some type of sexual favor in return. The offer can be explicit or implicit. Instead of offering a benefit, quid pro quo harassment might involve a threat such as a failing grade or denial of funding for a project.
Unwelcome Offensive Conduct
The second prong of the new harassment definition covers what most people think of as harassment. The person taking action does not need to intend to harass; it is enough if their conduct would upset a reasonable person to the point where they find it hard to continue learning or working in the environment.
Harassing conduct could include making jokes based on gender or gender identity. If a student asks another for a date and is repeatedly turned down, that could constitute harassment. Inappropriate touching or sexual remarks can be treated as harassment. Title IX discrimination lawyers look very closely at the facts of a situation to determine whether conduct is pervasive and offensive enough to disturb a reasonable person under the circumstances. If the conduct does not violate the specific standards set for Title IX, the school might still pursue action as a violation of the code of conduct.
Sexual Violence
Severe crimes of sexual violence such as rape and lesser offenses such as issuing threats are included as a type of harassment prohibited as sex-based discrimination under Title IX. Threats of any kind of abuse, not necessarily sexual, can fall under this category if they occur between current or former dating partners or people in a domestic relationship. Stalking, which is a pattern of behavior that would induce fear or emotional distress in a reasonable person, is also treated as a form of Title IX harassment.
Schools are required to offer “supportive measures” to complainants who allege sexual harassment of any type, but those reporting sexual violence often receive additional protections.
Title IX Discrimination Lawyers Fight for Justice for Students, Staff and Faculty
It takes courage to bring a Title IX complaint for harassment, and it takes equal bravery and resolve to fight allegations once they are raised. A vigorous legal defense strategy is just as crucial in a Title IX campus proceeding as in a criminal or civil court case.
At Duffy Law, our Title IX discrimination lawyers represent both complainants and respondents because we want to see justice served on every campus throughout the country. We have faith that when we investigate and present evidence to support our clients, we fulfill the purpose of Title IX to provide equal opportunities for all. If you believe you have suffered from illegal harassment or if you are facing allegations of Title IX harassment, we invite you to contact us today for a confidential consultation.