A r c h i v e
d I n f o r m a t i o n
REVISED SEXUAL HARASSMENT
GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER
STUDENTS, OR THIRD PARTIES
TITLE IX
January 19, 2001
Preamble
Guidance
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PREAMBLE
Summary
The Assistant
Secretary for Civil Rights, U.S. Department of Education
(Department), issues a new document (revised guidance) that replaces
the 1997 document entitled ?Sexual Harassment Guidance:? Harassment
of Students by School Employees, Other Students, or Third Parties,?
issued by the Office for Civil Rights (OCR) on March 13, 1997 (1997
guidance).? We revised the guidance in limited respects in light of
subsequent Supreme Court cases relating to sexual harassment in
schools.
The revised
guidance reaffirms the compliance standards that OCR applies in
investigations and administrative enforcement of Title IX of the
Education Amendments of 1972 (Title IX) regarding sexual
harassment.? The revised guidance re-grounds these standards in the
Title IX regulations, distinguishing them from the standards
applicable to private litigation for money damages and clarifying
their regulatory basis as distinct from Title VII of the Civil
Rights Act of 1964 (Title VII) agency law.? In most other respects
the revised guidance is identical to the 1997 guidance.? Thus, we
intend the revised guidance to serve the same purpose as the 1997
guidance.? It continues to provide the principles that a school[1] should use to recognize and effectively
respond to sexual harassment of students in its program as a
condition of receiving Federal financial assistance.
Purpose and
Scope of the Revised Guidance
In March 1997,
we published in the Federal Register ?Sexual
Harassment Guidance:? Harassment of Students by School Employees,
Other Students, or Third Parties.?? 62 FR 12034.? We issued the
guidance pursuant to our authority under Title IX, and our Title IX
implementing regulations, to eliminate discrimination based on sex
in education programs and activities receiving Federal financial
assistance.? It was grounded in longstanding legal authority
establishing that sexual harassment of students can be a form of sex
discrimination covered by Title IX.? The guidance was the product of
extensive consultation with interested parties, including students,
teachers, school administrators, and researchers.? We also made the
document available for public comment.
Since the
issuance of the 1997 guidance, the Supreme Court (Court) has issued
several important decisions in sexual harassment cases, including
two decisions specifically addressing sexual harassment of students
under Title IX:? Gebser v. Lago Vista Independent School
District (Gebser), 524 U.S. 274 (1998), and Davis v.
Monroe County Board of Education (Davis), 526 U.S. 629
(1999). The Court held in Gebser that a school can be liable
for monetary damages if a teacher sexually harasses a student, an
official who has authority to address the harassment has actual
knowledge of the harassment, and that official is deliberately
indifferent in responding to the harassment. In Davis, the
Court announced that a school also may be liable for monetary
damages if one student sexually harasses another student in the
school?s program and the conditions of Gebser are
met.
The Court was
explicit in Gebser and Davis that the liability
standards established in those cases are limited to private actions
for monetary damages.? See, e.g., Gebser, 524 U.S. 283, and
Davis, 526 U.S. at 639.? The Court acknowledged, by contrast,
the power of Federal agencies, such as the Department, to
?promulgate and enforce requirements that effectuate [Title IX?s]
nondiscrimination mandate,? even in circumstances that would not
give rise to a claim for money damages.? See, Gebser, 524
U.S. at 292.
In an August
1998 letter to school superintendents and a January 1999 letter to
college and university presidents, the Secretary of Education
informed school officials that the Gebser decision did not
change a school?s obligations to take reasonable steps under Title
IX and the regulations to prevent and eliminate sexual harassment as
a condition of its receipt of Federal funding.? The Department also
determined that, although in most important respects the substance
of the 1997 guidance was reaffirmed in Gebser and
Davis, certain areas of the 1997 guidance could be
strengthened by further clarification and explanation of the Title
IX regulatory basis for the guidance.
On November 2,
2000, we published in the Federal Register a notice
requesting comments on the proposed revised guidance (62 FR 66092).?
A detailed explanation of the Gebser and Davis
decisions, and an explanation of the proposed changes in the
guidance, can be found in the preamble to the proposed revised
guidance.? In those decisions and a third opinion, Oncale v.
Sundowner Offshore Services, Inc. (Oncale), 523 U.S. 75
(1998) (a sexual harassment case decided under Title VII), the
Supreme Court confirmed several fundamental principles we
articulated in the 1997 guidance.? In these areas, no changes in the
guidance were necessary.?
A notice
regarding the availability of this final document appeared in the
Federal Register on January 19, 2001.
Enduring Principles from the 1997
Guidance
It continues to
be the case that a significant number of students, both male and
female, have experienced sexual harassment, which can interfere with
a student?s academic performance and emotional and physical
well-being.? Preventing and remedying sexual harassment in schools
is essential to ensuring a safe environment in which students can
learn.? As with the 1997 guidance, the revised guidance applies to
students at every level of education.? School personnel who
understand their obligations under Title IX, e.g., understand that
sexual harassment can be sex discrimination in violation of Title
IX, are in the best position to prevent harassment and to lessen the
harm to students if, despite their best efforts, harassment
occurs.
One of the
fundamental aims of both the 1997 guidance and the revised guidance
has been to emphasize that, in addressing allegations of sexual
harassment, the good judgment and common sense of teachers and
school administrators are important elements of a response that
meets the requirements of Title IX.?
A critical
issue under Title IX is whether the school recognized that sexual
harassment has occurred and took prompt and effective action
calculated to end the harassment, prevent its recurrence, and, as
appropriate, remedy its effects.? If harassment has occurred, doing
nothing is always the wrong response.? However, depending on the
circumstances, there may be more than one right way to respond.? The
important thing is for school employees or officials to pay
attention to the school environment and not to hesitate to respond
to sexual harassment in the same reasonable, commonsense manner as
they would to other types of serious misconduct.
It is also
important that schools not overreact to behavior that does not rise
to the level of sexual harassment.? As the Department stated in the
1997 guidance, a kiss on the cheek by a first grader does not
constitute sexual harassment.? School personnel should consider the
age and maturity of students in responding to allegations of sexual
harassment.
Finally, we
reiterate the importance of having well- publicized and effective
grievance procedures in place to handle complaints of sex
discrimination, including sexual harassment complaints.?
Nondiscrimination policies and procedures are required by the Title
IX regulations.? In fact, the Supreme Court in Gebser
specifically affirmed the Department?s authority to enforce this
requirement administratively in order to carry out Title IX?s
nondiscrimination mandate.? 524 U.S. at 292.? Strong policies and
effective grievance procedures are essential to let students and
employees know that sexual harassment will not be tolerated and to
ensure that they know how to report it.
Analysis of Comments Received Concerning the Proposed
Revised Guidance and the Resulting Changes
In response to
the Assistant Secretary?s invitation to comment, OCR received
approximately 11 comments representing approximately 15
organizations and individuals.? Commenters provided specific
suggestions regarding how the revised guidance could be clarified.?
Many of these suggested changes have been incorporated.? Significant
and recurring issues are grouped by subject and discussed in the
following sections:?
Distinction Between Administrative Enforcement and
Private Litigation for Monetary Damages
In
Gebser and Davis, the Supreme Court addressed for the
first time the appropriate standards for determining when a school
district is liable under Title IX for money damages in a private
lawsuit brought by or on behalf of a student who has been sexually
harassed.? As explained in the preamble to the proposed revised
guidance, the Court was explicit in Gebser and Davis
that the liability standards established in these cases are limited
to private actions for monetary damages.? See, e.g., Gebser,
524 U.S. At 283, and Davis, 526 U.S. At 639.? The
Gebser Court recognized and contrasted lawsuits for money
damages with the incremental nature of administrative enforcement of
Title IX.? In Gebser, the Court was concerned with the
possibility of a money damages award against a school for harassment
about which it had not known.? In contrast, the process of
administrative enforcement requires enforcement agencies such as OCR
to make schools aware of potential Title IX violations and to seek
voluntary corrective action before pursuing fund termination or
other enforcement mechanisms.
Commenters
uniformly agreed with OCR that the Court limited the liability
standards established in Gebser and Davis to private
actions for monetary damages. See, e.g., Gebser, 524 U.S.
283, and Davis, 526 U.S. At 639.? Commenters also agreed that
the administrative enforcement standards reflected in the 1997
guidance remain valid in OCR enforcement actions.[2]? Finally, commenters agreed that the proposed
revisions provided important clarification to schools regarding the
standards that OCR will use and that schools should use to determine
compliance with Title IX as a condition of the receipt of Federal
financial assistance in light of Gebser and Davis.
Harassment
by Teachers and Other School Personnel
Most commenters
agreed with OCR?s interpretation of its regulations regarding a
school?s responsibility for harassment of students by teachers and
other school employees.? These commenters agreed that Title IX?s
prohibitions against discrimination are not limited to official
policies and practices governing school programs and activities.? A
school also engages in sex-based discrimination if its employees, in
the context of carrying out their day-to-day job responsibilities
for providing aid, benefits, or services to students (such as
teaching, counseling, supervising, and advising students) deny or
limit a student?s ability to participate in or benefit from the
schools program on the basis of sex.? Under the Title IX
regulations, the school is responsible for discrimination in these
cases, whether or not it knew or should have known about it, because
the discrimination occurred as part of the school?s undertaking to
provide nondiscriminatory aid, benefits, and services to students.?
The revised guidance distinguishes these cases from employee
harassment that, although taking place in a school?s program, occurs
outside of the context of the employee?s provision of aid, benefits,
and services to students.? In these latter cases, the school?s
responsibilities are not triggered until the school knew or should
have known about the harassment.
One commenter
expressed concern that it was inappropriate ever to find a school
out of compliance for harassment about which it knew nothing.? We
reiterate that, although a school may in some cases be responsible
for harassment caused by an employee that occurred before other
responsible employees of the school knew or should have known about
it, OCR always provides the school with actual notice and the
opportunity to take appropriate corrective action before issuing a
finding of violation.? This is consistent with the Court?s
underlying concern in Gebser and Davis.
Most commenters
acknowledged that OCR has provided useful factors to determine
whether harassing conduct took place ?in the context of providing
aid, benefits, or services.?? However, some commenters stated that
additional clarity and examples regarding the issue were needed.
Commenters also suggested clarifying references to quid pro
quo and hostile environment harassment as these two concepts,
though useful, do not determine the issue of whether the school
itself is considered responsible for the harassment.? We agree with
these concerns and have made significant revisions to the sections
?Harassment that Denies or Limits a Student?s Ability to Participate
in or Benefit from the Education Program? and ?Harassment by
Teachers and Other Employees? to clarify the guidance in these
respects.?
Gender-based Harassment, Including Harassment Predicated
on Sex-stereotyping
Several
commenters requested that we expand the discussion and include
examples of gender-based harassment predicated on sex stereotyping.?
Some commenters also argued that gender-based harassment should be
considered sexual harassment, and that we have ?artificially?
restricted the guidance only to harassment in the form of conduct of
a sexual nature, thus, implying that gender-based harassment is of
less concern and should be evaluated differently.
We have not
further expanded this section because, while we are also concerned
with the important issue of gender-based harassment, we believe that
harassment of a sexual nature raises unique and sufficiently
important issues that distinguish it from other types of
gender-based harassment and warrants its own guidance.?
Nevertheless,
we have clarified this section of the guidance in several ways.? The
guidance clarifies that gender-based harassment, including that
predicated on sex-stereotyping, is covered by Title IX if it is
sufficiently serious to deny or limit a student?s ability to
participate in or benefit from the program.? Thus, it can be
discrimination on the basis of sex to harass a student on the basis
of the victim?s failure to conform to stereotyped notions of
masculinity and femininity. Although this type of harassment is not
covered by the guidance, if it is sufficiently serious, gender-based
harassment is a school?s responsibility, and the same standards
generally will apply. We have also added an endnote regarding
Supreme Court precedent for the proposition that sex stereotyping
can constitute sex discrimination.?
Several
commenters also suggested that we state that sexual and non-sexual
(but gender-based) harassment should not be evaluated separately in
determining whether a hostile environment exists.? We note that both
the proposed revised guidance and the final revised guidance
indicate in several places that incidents of sexual harassment and
non-sexual, gender-based harassment can be combined to determine
whether a hostile environment has been created.? We also note that
sufficiently serious harassment of a sexual nature remains covered
by Title IX, as explained in the guidance, even though the hostile
environment may also include taunts based on sexual
orientation.
Definition
of Harassment
One commenter
urged OCR to provide distinct definitions of sexual harassment to be
used in administrative enforcement as distinguished from criteria
used to maintain private actions for monetary damages.? We
disagree.? First, as discussed in the preamble to the proposed
revised guidance, the definition of hostile environment sexual
harassment used by the Court in Davis is consistent with the
definition found in the proposed guidance. Although the terms used
by the Court in Davis are in some ways different from the
words used to define hostile environment harassment in the 1997
guidance (see, e.g., 62 FR 12041, ?conduct of a sexual nature is
sufficiently severe, persistent, or pervasive to limit a student?s
ability to participate in or benefit from the education program, or
to create a hostile or abusive educational environment?), the
definitions are consistent.? ?Both the Court?s and the Department?s
definitions are contextual descriptions intended to capture the same
concept -? that under Title IX, the conduct must be sufficiently
serious that it adversely affects a student?s ability to participate
in or benefit from the school?s program.? In determining whether
harassment is actionable, both Davis and the Department tell
schools to look at the ?constellation of surrounding circumstances,
expectations, and relationships? (526 U.S. At 651 (citing
Oncale)), and the Davis Court cited approvingly to the
underlying core factors described in the 1997 guidance for
evaluating the context of the harassment. Second, schools benefit
from consistency and simplicity in understanding what is sexual
harassment for which the school must take responsive action.? A
multiplicity of definitions would not serve this purpose.
Several
commenters suggested that we develop a unique Title IX definition of
harassment that does not rely on Title VII and that takes into
account the special relationship of schools to students.? Other
commenters, by contrast, commended OCR for recognizing that
Gebser and Davis did not alter the definition of
hostile environment sexual harassment found in OCR?s 1997 guidance,
which derives from Title VII caselaw, and asked us to strengthen the
point.? While Gebser and Davis made clear that Title
VII agency principles do not apply in determining liability for
money damages under Title IX, the Davis Court also indicated,
through its specific references to Title VII caselaw, that Title VII
remains relevant in determining what constitutes hostile environment
sexual harassment under Title IX. We also believe that the factors
described in both the 1997 guidance and the revised guidance to
determine whether sexual harassment has occurred provide the
necessary flexibility for taking into consideration the age and
maturity of the students involved and the nature of the school
environment.
Effective
Response
One commenter
suggested that the change in the guidance from ?appropriate
response? to ?effective response? implies a change in OCR policy
that requires omniscience of schools.? We disagree.? Effectiveness
has always been the measure of an adequate response under Title IX.?
This does not mean a school must overreact out of fear of being
judged inadequate.? Effectiveness is measured based on a
reasonableness standard.? Schools do not have to know beforehand
that their response will be effective.? However, if their initial
steps are ineffective in stopping the harassment, reasonableness may
require a series of escalating steps.
The Relationship Between FERPA and Title
IX
In the
development of both the 1997 guidance and the current revisions to
the guidance, commenters raised concerns about the interrelation of
the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.
1232g, and Title IX.? The concerns relate to two issues: (1) the
harassed student?s right to information about the outcome of a
sexual harassment complaint against another student, including
information about sanctions imposed on a student found guilty of
harassment; and (2) the due process rights of individuals, including
teachers, accused of sexual harassment by a student, to obtain
information about the identity of the complainant and the nature of
the allegations.
FERPA generally
forbids disclosure of information from a student?s ?education
record? without the consent of the student (or the student?s
parent).? Thus, FERPA may be relevant when the person found to have
engaged in harassment is another student, because written
information about the complaint, investigation, and outcome is part
of the harassing student?s education record.? Title IX is also
relevant because it is an important part of taking effective
responsive action for the school to inform the harassed student of
the results of its investigation and whether it counseled,
disciplined, or otherwise sanctioned the harasser.? This information
can assure the harassed student that the school has taken the
student?s complaint seriously and has taken steps to eliminate the
hostile environment and prevent the harassment from
recurring.
The Department
currently interprets FERPA as not conflicting with the Title IX
requirement that the school notify the harassed student of the
outcome of its investigation, i.e., whether or not harassment was
found to have occurred, because this information directly relates to
the victim.? It has been the Department?s position that there is a
potential conflict between FERPA and Title IX regarding disclosure
of sanctions, and that FERPA generally prevents a school from
disclosing to a student who complained of harassment information
about the sanction or discipline imposed upon a student who was
found to have engaged in that harassment.[3]
There is,
however, an additional statutory provision that may apply to this
situation.? In 1994, as part of the Improving America?s Schools Act,
Congress amended the General Education Provisions Act (GEPA) ‑? of
which FERPA is a part ‑? to state that nothing in GEPA ?shall be
construed to affect the applicability of ... title IX of the
Education Amendments of 1972....?[4]? The Department interprets this provision to
mean that FERPA continues to apply in the context of Title IX
enforcement, but if there is a direct conflict between requirements
of FERPA and requirements of Title IX, such that enforcement of
FERPA would interfere with the primary purpose of Title IX to
eliminate sex-based discrimination in schools, the requirements of
Title IX override any conflicting FERPA provisions.? The Department
is in the process of developing a consistent approach and specific
factors for implementing this provision.? OCR and the Department?s
Family Policy Compliance Office (FPCO) intend to issue joint
guidance, discussing specific areas of potential conflict between
FERPA and Title IX.
FERPA is also
relevant when a student accuses a teacher or other employee of
sexual harassment, because written information about the allegations
is contained in the student?s education record.? The potential
conflict arises because, while FERPA protects the privacy of the
student accuser, the accused individual may need the name of the
accuser and information regarding the nature of the allegations in
order to defend against the charges.? The 1997 guidance made clear
that neither FERPA nor Title IX override any federally protected due
process rights of a school employee accused of sexual
harassment.
Several
commenters urged the Department to expand and strengthen this
discussion.? They argue that in many instances a school?s failure to
provide information about the name of the student accuser and the
nature of the allegations seriously undermines the fairness of the
investigative and adjudicative process.? They also urge the
Department to include a discussion of the need for confidentiality
as to the identity of the individual accused of harassment because
of the significant harm that can be caused by false accusations.? We
have made several changes to the guidance, including an additional
discussion regarding the confidentiality of a person accused of
harassment and a new heading entitled ?Due Process Rights of the
Accused,? to address these concerns.?
Footnotes
[2] It is the position of the United States that the
standards set out in OCR?s guidance for finding a violation and
seeking voluntary corrective action also would apply to private
actions for injunctive and other equitable relief. See brief of the
United States as Amicus Curiae in Davis v. Monroe
County.
REVISED SEXUAL
HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS[1] BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR
THIRD PARTIES
Outline of Contents
I.
Introduction
II.
Sexual Harassment
III.
Applicability of Title IX
IV.
Title IX Regulatory Compliance Responsibilities
V.
Determining a School?s Responsibilities
A.?
Harassment that Denies or Limits a Student?s Ability to
Participate in or Benefit from the Education Program
1.
Factors Used to Evaluate Hostile Environment Sexual
Harassment
2.
Welcomeness
B.
Nature of a School?s Responsibility to Address Sexual
Harassment
1.
Harassment by Teachers and Other Employees
2.
Harassment by Other Students or Third
Parties
C.
Notice of Employee, Peer, or Third Party Harassment
D.
The Role of Grievance Procedures
VI.
OCR Case Resolution
VII.
Recipient?s Response
A.
Response to Student or Parent Reports of Harassment; Response to
Direct Observation of Harassment by a Responsible
Employee
B.
Confidentiality
C.
Response to Other Types of Notice
VIII.
Prevention
IX.
Prompt and Equitable Grievance Procedures
X.
Due Process Rights of the Accused
XI.
First Amendment
I.
Introduction
Title IX of the
Education Amendments of 1972 (Title IX) and the Department of
Education?s (Department) implementing regulations prohibit
discrimination on the basis of sex in federally assisted education
programs and activities.[2]? The Supreme Court, Congress, and Federal
executive departments and agencies, including the Department, have
recognized that sexual harassment of students can constitute
discrimination prohibited by Title IX.[3]? This guidance focuses on a school?s[4] fundamental compliance responsibilities under
Title IX and the Title IX regulations to address sexual harassment
of students as a condition of continued receipt of Federal funding.?
It describes the regulatory basis for a school?s compliance
responsibilities under Title IX, outlines the circumstances under
which sexual harassment may constitute discrimination prohibited by
the statute and regulations, and provides information about actions
that schools should take to prevent sexual harassment or to address
it effectively if it does occur.[5]
[Contents]
II. Sexual Harassment
Sexual
harassment is unwelcome conduct of a sexual nature.? Sexual
harassment can include unwelcome sexual advances, requests for
sexual favors, and other verbal, nonverbal, or physical conduct of a
sexual nature.[6]? Sexual harassment of a student can deny or
limit, on the basis of sex, the student?s ability to participate in
or to receive benefits, services, or opportunities in the school?s
program.? Sexual harassment of students is, therefore, a form of sex
discrimination prohibited by Title IX under the circumstances
described in this guidance.
It is important to recognize that Title IX?s prohibition
against sexual harassment does not extend to legitimate nonsexual
touching or other nonsexual conduct.? For example, a high school
athletic coach hugging a student who made a goal or a kindergarten
teacher?s consoling hug for a child with a skinned knee will not be
considered sexual harassment.[7]? Similarly, one student?s demonstration of a
sports maneuver or technique requiring contact with another student
will not be considered sexual harassment.? However, in some
circumstances, nonsexual conduct may take on sexual connotations and
rise to the level of sexual harassment.? For example, a teacher?s
repeatedly hugging and putting his or her arms around students under
inappropriate circumstances could create a hostile
environment.
[Contents]
III. Applicability of Title
IX
Title IX
applies to all public and private educational institutions that
receive Federal funds, i.e., recipients, including, but not limited
to, elementary and secondary schools, school districts, proprietary
schools, colleges, and universities.? The guidance uses the terms
?recipients? and ?schools? interchangeably to refer to all of those
institutions.? The ?education program or activity? of a school
includes all of the school?s operations.[8]? This means that Title IX protects students in
connection with all of the academic, educational, extra-curricular,
athletic, and other programs of the school, whether they take place
in the facilities of the school, on a school bus, at a class or
training program sponsored by the school at another location, or
elsewhere.
A student may be sexually harassed by a school employee,[9] another student, or a non-employee third party
(e.g., a visiting speaker or visiting athletes).? Title IX protects
any ?person? from sex discrimination.? Accordingly, both male and
female students are protected from sexual harassment[10] engaged in by a school?s employees, other
students, or third parties.? Moreover, Title IX prohibits sexual
harassment regardless of the sex of the harasser, i.e., even if the
harasser and the person being harassed are members of the same
sex.[11]? An example would be a campaign of sexually
explicit graffiti directed at a particular girl by other girls.[12]
Although Title
IX does not prohibit discrimination on the basis of sexual
orientation,[13] sexual harassment directed at gay or lesbian
students that is sufficiently serious to limit or deny a student?s
ability to participate in or benefit from the school?s program
constitutes sexual harassment prohibited by Title IX under the
circumstances described in this guidance.[14]? For example, if a male student or a group
of male students target a gay student for physical sexual advances,
serious enough to deny or limit the victim?s ability to participate
in or benefit from the school?s program, the school would need to
respond promptly and effectively, as described in this guidance,
just as it would if the victim were heterosexual.? On the other
hand, if students heckle another student with comments based on the
student?s sexual orientation (e.g., ?gay students are not welcome at
this table in the cafeteria?), but their actions do not involve
conduct of a sexual nature, their actions would not be sexual
harassment covered by Title IX.[15]
Though beyond the scope of this guidance, gender-based
harassment, which may include acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based on sex or
sex-stereotyping,[16] but not involving conduct of a sexual
nature, is also a form of sex discrimination to which a school must
respond, if it rises to a level that denies or limits a student?s
ability to participate in or benefit from the educational program.[17]? For example, the repeated sabotaging of
female graduate students? laboratory experiments by male students in
the class could be the basis of a violation of Title IX. A school
must respond to such harassment in accordance with the standards and
procedures described in this guidance.[18] In assessing all related circumstances to
determine whether a hostile environment exists, incidents of
gender-based harassment combined with incidents of sexual harassment
could create a hostile environment, even if neither the gender-based
harassment alone nor the sexual harassment alone would be sufficient
to do so.[19]
[Contents]
IV. Title IX Regulatory Compliance
Responsibilities
As a condition
of receiving funds from the Department, a school is required to
comply with Title IX and the Department?s Title IX regulations,
which spell out prohibitions against sex discrimination.? The law is
clear that sexual harassment may constitute sex discrimination under
Title IX.[20]
Recipients
specifically agree, as a condition for receiving Federal financial
assistance from the Department, to comply with Title IX and the
Department?s Title IX regulations.? The regulatory provision
requiring this agreement, known as an assurance of compliance,
specifies that recipients must agree that education programs or
activities operated by the recipient will be operated in compliance
with the Title IX regulations, including taking any action necessary
to remedy its discrimination or the effects of its discrimination in
its programs.[21]
The regulations
set out the basic Title IX responsibilities a recipient undertakes
when it accepts Federal financial assistance, including the
following specific obligations.[22]? A recipient agrees that, in providing any
aid, benefit, or service to students, it will not, on the basis of
sex??
Treat one
student differently from another in determining whether the student
satisfies any requirement or condition for the provision of any aid,
benefit, or service;[23]
- Provide
different aid, benefits, or services or provide aid, benefits, or
services in a different manner;[24]
- Deny any
student any such aid, benefit, or service;[25]
- Subject
students to separate or different rules of behavior, sanctions, or
other treatment;[26]
- Aid or
perpetuate discrimination against a student by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit,
or service to students;[27] and
- Otherwise
limit any student in the enjoyment of any right, privilege,
advantage, or opportunity.[28]
For the purposes of
brevity and clarity, this guidance generally summarizes this
comprehensive list by referring to a school?s obligation to ensure
that a student is not denied or limited in the ability to
participate in or benefit from the school?s program on the basis of
sex.
The regulations
also specify that, if a recipient discriminates on the basis of sex,
the school must take remedial action to overcome the effects of the
discrimination.[29]
In addition,
the regulations establish procedural requirements that are important
for the prevention or correction of sex discrimination, including
sexual harassment.? These requirements include issuance of a policy
against sex discrimination[30] and adoption and publication of grievance
procedures providing for prompt and equitable resolution of
complaints of sex discrimination.[31]? The regulations also require that
recipients designate at least one employee to coordinate compliance
with the regulations, including coordination of investigations of
complaints alleging noncompliance.[32]
To comply with
these regulatory requirements, schools need to recognize and respond
to sexual harassment of students by teachers and other employees, by
other students, and by third parties.? This guidance explains how
the requirements of the Title IX regulations apply to situations
involving sexual harassment of a student and outlines measures that
schools should take to ensure compliance.
[Contents]
V. Determining a School?s
Responsibilities
In assessing
sexually harassing conduct, it is important for schools to recognize
that two distinct issues are considered.? The first issue is
whether, considering the types of harassment discussed in the
following section, the conduct denies or limits a student?s ability
to participate in or benefit from the program based on sex.? If it
does, the second issue is the nature of the school?s responsibility
to address that conduct.? As discussed in a following section, this
issue depends in part on the identity of the harasser and the
context in which the harassment occurred.
A. Harassment that Denies or Limits a Student?s
Ability to Participate in or Benefit from the Education Program?
This guidance
moves away from specific labels for types of sexual harassment.[33]? In each case, the issue is whether the
harassment rises to a level that it denies or limits a student?s
ability to participate in or benefit from the school?s program based
on sex. However, an understanding of the different types of sexual
harassment can help schools determine whether or not harassment has
occurred that triggers a school?s responsibilities under, or
violates, Title IX or its regulations.?
The type of
harassment traditionally referred to as quid pro quo
harassment occurs if a teacher or other employee conditions an
educational decision or benefit on the student?s submission to
unwelcome sexual conduct.[34]? Whether the student resists and suffers the
threatened harm or submits and avoids the threatened harm, the
student has been treated differently, or the student?s ability to
participate in or benefit from the school?s program has been denied
or limited, on the basis of sex in violation of the Title IX
regulations.[35]
By contrast,
sexual harassment can occur that does not explicitly or implicitly
condition a decision or benefit on submission to sexual conduct.?
Harassment of this type is generally referred to as hostile
environment harassment.[36]? This type of harassing conduct requires a
further assessment of whether or not the conduct is sufficiently
serious to deny or limit a student?s ability to participate in or
benefit from the school?s program based on sex.[37]?
Teachers and
other employees can engage in either type of harassment.? Students
and third parties are not generally given responsibility over other
students and, thus, generally can only engage in hostile environment
harassment.
1. Factors Used to Evaluate Hostile Environment
Sexual Harassment
As outlined in
the following paragraphs, OCR considers a variety of related factors
to determine if a hostile environment has been created, i.e., if
sexually harassing conduct by an employee, another student, or a
third party is sufficiently serious that it denies or limits a
student?s ability to participate in or benefit from the school?s
program based on sex.? OCR considers the conduct from both a
subjective[38] and objective[39] perspective.? In evaluating the severity and
pervasiveness of the conduct, OCR considers all relevant
circumstances, i.e., ?the constellation of surrounding
circumstances, expectations, and relationships.?[40]? Schools should also use these factors to
evaluate conduct in order to draw commonsense distinctions between
conduct that constitutes sexual harassment and conduct that does not
rise to that level.? Relevant factors include the
following:
- The
degree to which the conduct affected one or more students?
education.? OCR assesses the effect of the harassment on the
student to determine whether it has denied or limited the
student?s ability to participate in or benefit from the school?s
program.? For example, a student?s grades may go down or the
student may be forced to withdraw from school because of the
harassing behavior.[41]? A student may also suffer physical
injuries or mental or emotional distress.[42]? In another situation, a student may have
been able to keep up his or her grades and continue to attend
school even though it was very difficult for him or her to do so
because of the teacher?s repeated sexual advances.? Similarly, a
student may be able to remain on a sports team, despite
experiencing great difficulty performing at practices and games
from the humiliation and anger caused by repeated sexual advances
and intimidation by several team members that create a hostile
environment.? Harassing conduct in these examples would alter a
reasonable student?s educational environment and adversely affect
the student?s ability to participate in or benefit from the
school?s program on the basis of sex.
A hostile
environment can occur even if the harassment is not targeted
specifically at the individual complainant.[43]? For example, if a student, group of
students, or a teacher regularly directs sexual comments toward a
particular student, a hostile environment may be created not only
for the targeted student, but also for others who witness the
conduct.
- The type,
frequency, and duration of the conduct.? In most cases, a
hostile environment will exist if there is a pattern or practice
of harassment, or if the harassment is sustained and nontrivial.[44]? For instance, if a young woman is taunted
by one or more young men about her breasts or genital area or
both, OCR may find that a hostile environment has been created,
particularly if the conduct has gone on for some time, or takes
place throughout the school, or if the taunts are made by a number
of students.? The more severe the conduct, the less the need to
show a repetitive series of incidents; this is particularly true
if the harassment is physical.? For instance, if the conduct is
more severe, e.g., attempts to grab a female student?s breasts or
attempts to grab any student?s genital area or buttocks, it need
not be as persistent to create a hostile environment.? Indeed, a
single or isolated incident of sexual harassment may, if
sufficiently severe, create a hostile environment.[45]? On the other hand, conduct that is not
severe will not create a hostile environment, e.g., a comment by
one student to another student that she has a nice figure.?
Indeed, depending on the circumstances, this may not even be
conduct of a sexual nature.[46]? Similarly, because students date one
another, a request for a date or a gift of flowers, even if
unwelcome, would not create a hostile environment.? However, there
may be circumstances in which repeated, unwelcome requests for
dates or similar conduct could create a hostile environment.? For
example, a person, who has been refused previously, may request
dates in an intimidating or threatening manner.
- The
identity of and relationship between the alleged harasser and the
subject or subjects of the harassment.? A factor to be
considered, especially in cases involving allegations of sexual
harassment of a student by a school employee, is the identity of
and relationship between the alleged harasser and the subject or
subjects of the harassment.? For example, due to the power a
professor or teacher has over a student, sexually based conduct by
that person toward a student is more likely to create a hostile
environment than similar conduct by another student.[47]
- The
number of individuals involved.? Sexual harassment may be
committed by an individual or a group.? In some cases, verbal
comments or other conduct from one person might not be sufficient
to create a hostile environment, but could be if done by a group.?
Similarly, while harassment can be directed toward an individual
or a group,[48] the effect of the conduct toward a group
may vary, depending on the type of conduct and the context.? For
certain types of conduct, there may be ?safety in numbers.?? For
example, following an individual student and making sexual taunts
to him or her may be very intimidating to that student, but, in
certain circumstances, less so to a group of students.? On the
other hand, persistent unwelcome sexual conduct still may create a
hostile environment if directed toward a group.
- The age
and sex of the alleged harasser and the subject or subjects of the
harassment.? For example, in the case of younger students,
sexually harassing conduct is more likely to be intimidating if
coming from an older student.[49]
- The size
of the school, location of the incidents, and context in which
they occurred.? Depending on the circumstances of a particular
case, fewer incidents may have a greater effect at a small college
than at a large university campus.? Harassing conduct occurring on
a school bus may be more intimidating than similar conduct on a
school playground because the restricted area makes it impossible
for students to avoid their harassers.[50]? Harassing conduct in a personal or
secluded area, such as a dormitory room or residence hall, can
have a greater effect (e.g., be seen as more threatening) than
would similar conduct in a more public area.? On the other hand,
harassing conduct in a public place may be more humiliating.? Each
incident must be judged individually.
- Other
incidents at the school.? A series of incidents at the school,
not involving the same students, could ?? taken together ?? create
a hostile environment, even if each by itself would not be
sufficient.[51]
- Incidents
of gender-based, but nonsexual harassment.? Acts of verbal,
nonverbal or physical aggression, intimidation or hostility based
on sex, but not involving sexual activity or language, can be
combined with incidents of sexual harassment to determine if the
incidents of sexual harassment are sufficiently serious to create
a sexually hostile environment.[52]
It is the totality of
the circumstances in which the behavior occurs that is critical in
determining whether a hostile environment exists.? Consequently, in
using the factors discussed previously to evaluate incidents of
alleged harassment, it is always important to use common sense and
reasonable judgement in determining whether a sexually hostile
environment has been created.
2. Welcomeness
The section
entitled ?Sexual Harassment? explains that in order for conduct of a
sexual nature to be sexual harassment, it must be unwelcome.?
Conduct is unwelcome if the student did not request or invite it and
?regarded the conduct as undesirable or offensive.?[53]? Acquiescence in the conduct or the failure
to complain does not always mean that the conduct was welcome.[54]? For example, a student may decide not to
resist sexual advances of another student or may not file a
complaint out of fear.? In addition, a student may not object to a
pattern of demeaning comments directed at him or her by a group of
students out of a concern that objections might cause the harassers
to make more comments.? The fact that a student may have accepted
the conduct does not mean that he or she welcomed it.[55]? Also, the fact that a student willingly
participated in conduct on one occasion does not prevent him or her
from indicating that the same conduct has become unwelcome on a
subsequent occasion.? On the other hand, if a student actively
participates in sexual banter and discussions and gives no
indication that he or she objects, then the evidence generally will
not support a conclusion that the conduct was unwelcome.[56]
If younger
children are involved, it may be necessary to determine the degree
to which they are able to recognize that certain sexual conduct is
conduct to which they can or should reasonably object and the degree
to which they can articulate an objection.? Accordingly, OCR will
consider the age of the student, the nature of the conduct involved,
and other relevant factors in determining whether a student had the
capacity to welcome sexual conduct.
Schools should
be particularly concerned about the issue of welcomeness if the
harasser is in a position of authority.? For instance, because
students may be encouraged to believe that a teacher has absolute
authority over the operation of his or her classroom, a student may
not object to a teacher?s sexually harassing comments during class;
however, this does not necessarily mean that the conduct was
welcome.? Instead, the student may believe that any objections would
be ineffective in stopping the harassment or may fear that by making
objections he or she will be singled out for harassing comments or
other retaliation.
In addition,
OCR must consider particular issues of welcomeness if the alleged
harassment relates to alleged ?consensual? sexual relationships
between a school?s adult employees and its students.? If elementary
students are involved, welcomeness will not be an issue:? OCR will
never view sexual conduct between an adult school employee and an
elementary school student as consensual.? In cases involving
secondary students, there will be a strong presumption that sexual
conduct between an adult school employee and a student is not
consensual.? In cases involving older secondary students, subject to
the presumption,[57] OCR will consider a number of factors in
determining whether a school employee?s sexual advances or other
sexual conduct could be considered welcome.[58]? In addition, OCR will consider these
factors in all cases involving postsecondary students in making
those determinations.[59]? The factors include the
following:
- The nature
of the conduct and the relationship of the school employee to the
student, including the degree of influence (which could, at least
in part, be affected by the student?s age), authority, or control
the employee has over the student.
- Whether the
student was legally or practically unable to consent to the sexual
conduct in question.? For example, a student?s age could affect
his or her ability to do so.? Similarly, certain types of
disabilities could affect a student?s ability to do so.
If there is a dispute
about whether harassment occurred or whether it was welcome ?? in a
case in which it is appropriate to consider whether the conduct
would be welcome ?? determinations should be made based on the
totality of the circumstances.? The following types of information
may be helpful in resolving the dispute:
- Statements
by any witnesses to the alleged incident.
- Evidence
about the relative credibility of the allegedly harassed student
and the alleged harasser.? For example, the level of detail and
consistency of each person?s account should be compared in an
attempt to determine who is telling the truth.? Another way to
assess credibility is to see if corroborative evidence is lacking
where it should logically exist.? However, the absence of
witnesses may indicate only the unwillingness of others to step
forward, perhaps due to fear of the harasser or a desire not to
get involved.
- Evidence
that the alleged harasser has been found to have harassed others
may support the credibility of the student claiming the
harassment; conversely, the student?s claim will be weakened if he
or she has been found to have made false allegations against other
individuals.
- Evidence of
the allegedly harassed student?s reaction or behavior after the
alleged harassment.? For example, were there witnesses who saw the
student immediately after the alleged incident who say that the
student appeared to be upset?? However, it is important to note
that some students may respond to harassment in ways that do not
manifest themselves right away, but may surface several days or
weeks after the harassment.? For example, a student may initially
show no signs of having been harassed, but several weeks after the
harassment, there may be significant changes in the student?s
behavior, including difficulty concentrating on academic work,
symptoms of depression, and a desire to avoid certain individuals
and places at school.
- Evidence
about whether the student claiming harassment filed a complaint or
took other action to protest the conduct soon after the alleged
incident occurred.? However, failure to immediately complain may
merely reflect a fear of retaliation or a fear that the
complainant may not be believed rather than that the alleged
harassment did not occur.
- Other
contemporaneous evidence.? For example, did the student claiming
harassment write about the conduct and his or her reaction to it
soon after it occurred (e.g., in a diary or letter)?? Did the
student tell others (friends, parents) about the conduct (and his
or her reaction to it) soon after it occurred?
B. Nature of the School?s Responsibility to Address
Sexual Harassment
A school has a
responsibility to respond promptly and effectively to sexual
harassment. In the case of harassment by teachers or other
employees, the nature of this responsibility depends in part on
whether the harassment occurred in the context of the employee?s
provision of aid, benefits, or services to students.
1. Harassment by Teachers and Other
Employees
Sexual
harassment of a student by a teacher or other school employee can be
discrimination in violation of Title IX.[60]? Schools are responsible for taking prompt
and effective action to stop the harassment and prevent its
recurrence.? A school also may be responsible for remedying the
effects of the harassment on the student who was harassed.? The
extent of a recipient?s responsibilities if an employee sexually
harasses a student is determined by whether or not the harassment
occurred in the context of the employee?s provision of aid,
benefits, or services to students.
A recipient is
responsible under the Title IX regulations for the nondiscriminatory
provision of aid, benefits, and services to students.? Recipients
generally provide aid, benefits, and services to students through
the responsibilities they give to employees.? If an employee who is
acting (or who reasonably appears to be acting) in the context of
carrying out these responsibilities over students engages in sexual
harassment ? generally this means harassment that is carried out
during an employee?s performance of his or her responsibilities in
relation to students, including teaching, counseling, supervising,
advising, and transporting students ? and the harassment denies or
limits a student?s ability to participate in or benefit from a
school program on the basis of sex,[61] the recipient is responsible for the
discriminatory conduct.[62]? The recipient is, therefore, also
responsible for remedying any effects of the harassment on the
victim, as well as for ending the harassment and preventing its
recurrence.? This is true whether or not the recipient has ?notice?
of the harassment.? (As explained in the section on ?Notice of
Employee, Peer, or Third Party Harassment,? for purposes of this
guidance, a school has notice of harassment if a responsible school
employee actually knew or, in the exercise of reasonable care,
should have known about the harassment.)? Of course, under OCR?s
administrative enforcement, recipients always receive actual notice
and the opportunity to take appropriate corrective action before any
finding of violation or possible loss of federal funds.
Whether or not
sexual harassment of a student occurred within the context of an
employee?s responsibilities for providing aid, benefits, or services
is determined on a case-by-case basis, taking into account a variety
of factors.? If an employee conditions the provision of an aid,
benefit, or service that the employee is responsible for providing
on a student?s submission to sexual conduct, i.e., conduct
traditionally referred to as quid pro quo harassment, the
harassment is clearly taking place in the context of the employee?s
responsibilities to provide aid, benefits, or services.? In other
situations, i.e., when an employee has created a hostile
environment, OCR will consider the following factors in determining
whether or not the harassment has taken place in this context,
including:
- The type and
degree of responsibility given to the employee, including both
formal and informal authority, to provide aids, benefits, or
services to students, to direct and control student conduct, or to
discipline students generally;
- the degree
of influence the employee has over the particular student
involved, including in the circumstances in which the harassment
took place;
- where and
when the harassment occurred;
- the age and
educational level of the student involved; and
- as
applicable, whether, in light of the student?s age and educational
level and the way the school is run, it would be reasonable for
the student to believe that the employee was in a position of
responsibility over the student, even if the employee was
not.
These factors
are applicable to all recipient educational institutions, including
elementary and secondary schools, colleges, and universities.?
Elementary and secondary schools, however, are typically run in a
way that gives teachers, school officials, and other school
employees a substantial degree of supervision, control, and
disciplinary authority over the conduct of students.[63]? Therefore, in cases involving allegations
of harassment of? elementary and secondary school-age students by a
teacher or school administrator during any school activity,[64] consideration of these factors will
generally lead to a conclusion that the harassment occurred in the
context of the employee?s provision of aid, benefits, or
services.
For example, a
teacher sexually harasses an eighth- grade student in a school
hallway.? Even if the student is not in any of the teacher?s classes
and even if the teacher is not designated as a hall monitor, given
the age and educational level of the student and the status and
degree of influence of teachers in elementary and secondary schools,
it would be reasonable for the student to believe that the teacher
had at least informal disciplinary authority over students in the
hallways.? Thus, OCR would consider this an example of conduct that
is occurring in the context of the employee?s responsibilities to
provide aid, benefits, or services.
Other examples of sexual
harassment of a student occurring in the context of an employee?s
responsibilities for providing aid, benefits, or services include,
but are not limited to -- a faculty member at a university?s medical
school conditions an intern?s evaluation on submission to his sexual
advances and then gives her a poor evaluation for rejecting the
advances; a high school drama instructor does not give a student a
part in a play because she has not responded to sexual overtures
from the instructor; a faculty member withdraws approval of research
funds for her assistant because he has rebuffed her advances; a
journalism professor who supervises a college newspaper continually
and inappropriately touches a student editor in a sexual manner,
causing the student to resign from the newspaper staff; and a
teacher repeatedly asks a ninth grade student to stay after class
and attempts to engage her in discussions about sex and her personal
experiences while they are alone in the classroom, causing the
student to stop coming to class.? In each of these cases, the school
is responsible for the discriminatory conduct, including taking
prompt and effective action to end the harassment, prevent it from
recurring, and remedy the effects of the harassment on the victim.
Sometimes harassment of
a student by an employee in the school?s program does not take place
in the context of the employee?s provision of aid, benefits, or
services, but nevertheless is sufficiently serious to create a
hostile educational environment.? An example of this conduct might
occur if a faculty member in the history department at a university,
over the course of several weeks, repeatedly touches and makes
sexually suggestive remarks to a graduate engineering student while
waiting at a stop for the university shuttle bus, riding on the bus,
and upon exiting the bus.? As a result, the student stops using the
campus shuttle and walks the very long distances between her
classes.? In this case, the school is not directly responsible for
the harassing conduct because it did not occur in the context of the
employee?s responsibilities for the provision of aid, benefits, or
services to students.? However, the conduct is sufficiently serious
to deny or limit the student in her ability to participate in or
benefit from the recipient?s program.? Thus, the school has a duty,
upon notice of the harassment,[65] to take prompt and effective action to stop
the harassment and prevent its recurrence.?
If the school
takes these steps, it has avoided violating Title IX.? If the school
fails to take the necessary steps, however, its failure to act has
allowed the student to continue to be subjected to a hostile
environment that denies or limits the student?s ability to
participate in or benefit from the school?s program.? The school,
therefore, has engaged in its own discrimination.? It then becomes
responsible, not just for stopping the conduct and preventing it
from happening again, but for remedying the effects of the
harassment on the student that could reasonably have been prevented
if the school had responded promptly and effectively.? (For related
issues, see the sections on ?OCR Case Resolution? and ?Recipient?s
Response.?)
2. Harassment by Other Students or Third
Parties
If a student
sexually harasses another student and the harassing conduct is
sufficiently serious to deny or limit the student?s ability to
participate in or benefit from the program, and if the school knows
or reasonably should know[66] about the harassment, the school is
responsible for taking immediate effective action to eliminate the
hostile environment and prevent its recurrence.[67]? As long as the school, upon notice of the
harassment, responds by taking prompt and effective action to end
the harassment and prevent its recurrence, the school has carried
out its responsibility under the Title IX regulations.? On the other
hand, if, upon notice, the school fails to take prompt, effective
action, the school?s own inaction has permitted the student to be
subjected to a hostile environment that denies or limits the
student?s ability to participate in or benefit from the school?s
program on the basis of sex.[68]? In this case, the school is responsible for
taking effective corrective actions to stop the harassment, prevent
its recurrence, and remedy the effects on the victim that could
reasonably have been prevented had it responded promptly and
effectively.
Similarly,
sexually harassing conduct by third parties, who are not themselves
employees or students at the school (e.g., a visiting speaker or
members of a visiting athletic team), may also be of a sufficiently
serious nature to deny or limit a student?s ability to participate
in or benefit from the education program.? As previously outlined in
connection with peer harassment, if the school knows or should
know[69] of the harassment, the school is responsible
for taking prompt and effective action to eliminate the hostile
environment and prevent its recurrence.
The type of
appropriate steps that the school should take will differ depending
on the level of control that the school has over the third party
harasser.[70]? For example, if athletes from a visiting
team harass the home school?s students, the home school may not be
able to discipline the athletes.? However, it could encourage the
other school to take appropriate action to prevent further
incidents; if necessary, the home school may choose not to invite
the other school back.? (This issue is discussed more fully in the
section on ?Recipient?s Response.?)
If, upon
notice, the school fails to take prompt and effective corrective
action, its own failure has permitted the student to be subjected to
a hostile environment that limits the student?s ability to
participate in or benefit from the education program.[71]? In this case, the school is responsible for
taking corrective actions to stop the harassment, prevent its
recurrence, and remedy the effects on the victim that could
reasonably have been prevented had the school responded promptly and
effectively.
C.
Notice of Employee, Peer, or Third Party
Harassment
As described in
the section on ?Harassment by Teachers and Other Employees,? schools
may be responsible for certain types of employee harassment that
occurred before the school otherwise had notice of the harassment.?
On the other hand, as described in that section and the section on
?Harassment by Other Students or Third Parties,? in situations
involving certain other types of employee harassment, or harassment
by peers or third parties, a school will be in violation of the
Title IX regulations if the school ?has notice? of a sexually
hostile environment and fails to take immediate and effective
corrective action.[72]
A school has
notice if a responsible employee ?knew, or in the exercise of
reasonable care should have known,? about the harassment.[73]? A responsible employee would include any
employee who has the authority to take action to redress the
harassment, who has the duty to report to appropriate school
officials sexual harassment or any other misconduct by students or
employees, or an individual who a student could reasonably believe
has this authority or responsibility.[74]? Accordingly, schools need to ensure that
employees are trained so that those with authority to address
harassment know how to respond appropriately, and other responsible
employees know that they are obligated to report harassment to
appropriate school officials.? Training for employees should include
practical information about how to identify harassment and, as
applicable, the person to whom it should be reported.
A school can
receive notice of harassment in many different ways.? A student may
have filed a grievance with the Title IX coordinator[75] or complained to a teacher or other
responsible employee about fellow students harassing him or her.? A
student, parent, or other individual may have contacted other
appropriate personnel, such as a principal, campus security, bus
driver, teacher, affirmative action officer, or staff in the office
of student affairs.? A teacher or other responsible employee of the
school may have witnessed the harassment.? The school may receive
notice about harassment in an indirect manner, from sources such as
a member of the school staff, a member of the educational or local
community, or the media.? The school also may have learned about the
harassment from flyers about the incident distributed at the school
or posted around the school.? For the purposes of compliance with
the Title IX regulations, a school has a duty to respond to
harassment about which it reasonably should have known, i.e., if it
would have learned of the harassment if it had exercised reasonable
care or made a ?reasonably diligent inquiry.?[76]
For example, in
some situations if the school knows of incidents of harassment, the
exercise of reasonable care should trigger an investigation that
would lead to a discovery of additional incidents.[77]? In other cases, the pervasiveness of the
harassment may be enough to conclude that the school should have
known of the hostile environment ?? if the harassment is widespread,
openly practiced, or well-known to students and staff (such as
sexual harassment occurring in the hallways, graffiti in public
areas, or harassment occurring during recess under a teacher?s
supervision.)[78]
If a school otherwise knows or reasonably
should know of a hostile environment and fails to take prompt and
effective corrective action, a school has violated Title IX even if
the student has failed to use the school?s existing grievance
procedures or otherwise inform the school of the harassment.
D. The Role of Grievance
Procedures
Schools are required by the Title IX regulations to adopt and
publish grievance procedures providing for prompt and equitable
resolution of sex discrimination complaints, including complaints of
sexual harassment, and to disseminate a policy against sex
discrimination.[79]? (These issues are discussed in the section
on ?Prompt and Equitable Grievance Procedures.?)? These procedures
provide a school with a mechanism for discovering sexual harassment
as early as possible and for effectively correcting problems, as
required by the Title IX regulations.? By having a strong policy
against sex discrimination and accessible, effective, and fairly
applied grievance procedures, a school is telling its students that
it does not tolerate sexual harassment and that students can report
it without fear of adverse consequences.
Without a
disseminated policy and procedure, a student does not know either of
the school?s policy against and obligation to address this form of
discrimination, or how to report harassment so that it can be
remedied.? If the alleged harassment is sufficiently serious to
create a hostile environment and it is the school?s failure to
comply with the procedural requirements of the Title IX regulations
that hampers early notification and intervention and permits sexual
harassment to deny or limit a student?s ability to participate in or
benefit from the school?s program on the basis of sex,[80] the school will be responsible under the
Title IX regulations, once informed of the harassment, to take
corrective action, including stopping the harassment, preventing its
recurrence, and remedying the effects of the harassment on the
victim that could reasonably have been prevented if the school?s
failure to comply with the procedural requirements had not hampered
early notification.
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VI. OCR Case Resolution
If OCR is asked
to investigate or otherwise resolve incidents of sexual harassment
of students, including incidents caused by employees, other
students, or third parties, OCR will consider whether ?? (1) the
school has a disseminated policy prohibiting sex discrimination
under Title IX[81] and effective grievance procedures;[82] (2) the school appropriately investigated or
otherwise responded to allegations of sexual harassment;[83] and (3) the school has taken immediate and
effective corrective action responsive to the harassment, including
effective actions to end the harassment, prevent its recurrence,
and, as appropriate, remedy its effects.[84]? (Issues related to appropriate
investigative and corrective actions are discussed in detail in the
section on ?Recipient?s Response.?)
If the school
has taken, or agrees to take, each of these steps, OCR will consider
the case against the school resolved and will take no further
action, other than monitoring compliance with an agreement, if any,
between the school and OCR.? This is true in cases in which the
school was in violation of the Title IX regulations (e.g., a teacher
sexually harassed a student in the context of providing aid,
benefits, or services to students), as well as those in which there
has been no violation of the regulations (e.g., in a peer sexual
harassment situation in which the school took immediate, reasonable
steps to end the harassment and prevent its recurrence).? This is
because, even if OCR identifies a violation, Title IX requires OCR
to attempt to secure voluntary compliance.[85]? Thus, because a school will have the
opportunity to take reasonable corrective action before OCR issues a
formal finding of violation, a school does not risk losing its
Federal funding solely because discrimination occurred.
[Contents]
VII. Recipient?s Response
Once a school has notice of possible sexual
harassment of students ?? whether carried out by employees, other
students, or third parties ?? it should take immediate and
appropriate steps to investigate or otherwise determine what
occurred and take prompt and effective steps reasonably calculated
to end any harassment, eliminate a hostile environment if one has
been created, and prevent harassment from occurring again.? These
steps are the school?s responsibility whether or not the student who
was harassed makes a complaint or otherwise asks the school to take
action.[86]? As described in the next section, in
appropriate circumstances the school will also be responsible for
taking steps to remedy the effects of the harassment on the
individual student or students who were harassed.? What constitutes
a reasonable response to information about possible sexual
harassment will differ depending upon the circumstances.
A. Response to Student or Parent Reports of
Harassment; Response to Direct Observation of Harassment by a
Responsible Employee
If a student or
the parent of an elementary or secondary student provides
information or complains about sexual harassment of the student, the
school should initially discuss what actions the student or parent
is seeking in response to the harassment.? The school should explain
the avenues for informal and formal action, including a description
of the grievance procedure that is available for sexual harassment
complaints and an explanation of how the procedure works.? If a
responsible school employee has directly observed sexual harassment
of a student, the school should contact the student who was harassed
(or the parent, depending upon the age of the student),[87] explain that the school is responsible for
taking steps to correct the harassment, and provide the same
information described in the previous sentence.
Regardless of
whether the student who was harassed, or his or her parent, decides
to file a formal complaint or otherwise request action on the
student?s behalf (including in cases involving direct observation by
a responsible employee), the school must promptly investigate to
determine what occurred and then take appropriate steps to resolve
the situation.? The specific steps in an investigation will vary
depending upon the nature of the allegations, the source of the
complaint, the age of the student or students involved, the size and
administrative structure of the school, and other factors.? However,
in all cases the inquiry must be prompt, thorough, and impartial.?
(Requests by the student who was harassed for confidentiality or for
no action to be taken, responding to notice of harassment from other
sources, and the components of a prompt and equitable grievance
procedure are discussed in subsequent sections of this
guidance.)
It may be
appropriate for a school to take interim measures during the
investigation of a complaint.? For instance, if a student alleges
that he or she has been sexually assaulted by another student, the
school may decide to place the students immediately in separate
classes or in different housing arrangements on a campus, pending
the results of the school?s investigation.? Similarly, if the
alleged harasser is a teacher, allowing the student to transfer to a
different class may be appropriate.? In cases involving potential
criminal conduct, school personnel should determine whether
appropriate law enforcement authorities should be notified.? In all
cases, schools should make every effort to prevent disclosure of the
names of all parties involved -? the complainant, the witnesses, and
the accused -- except to the extent necessary to carry out an
investigation.
If a school
determines that sexual harassment has occurred, it should take
reasonable, timely, age-appropriate, and effective corrective
action, including steps tailored to the specific situation.[88]? Appropriate steps should be taken to end
the harassment.? For example, school personnel may need to counsel,
warn, or take disciplinary action against the harasser, based on the
severity of the harassment or any record of prior incidents or
both.[89]? A series of escalating consequences may be
necessary if the initial steps are ineffective in stopping the
harassment.[90]? In some cases, it may be appropriate to
further separate the harassed student and the harasser, e.g., by
changing housing arrangements[91] or directing the harasser to have no further
contact with the harassed student.? Responsive measures of this type
should be designed to minimize, as much as possible, the burden on
the student who was harassed.? If the alleged harasser is not a
student or employee of the recipient, OCR will consider the level of
control the school has over the harasser in determining what
response would be appropriate.[92]
Steps should
also be taken to eliminate any hostile environment that has been
created.? For example, if a female student has been subjected to
harassment by a group of other students in a class, the school may
need to deliver special training or other interventions for that
class to repair the educational environment.? If the school offers
the student the option of withdrawing from a class in which a
hostile environment occurred, the school should assist the student
in making program or schedule changes and ensure that none of the
changes adversely affect the student?s academic record.? Other
measures may include, if appropriate, directing a harasser to
apologize to the harassed student.? If a hostile environment has
affected an entire school or campus, an effective response may need
to include dissemination of information, the issuance of new policy
statements, or other steps that are designed to clearly communicate
the message that the school does not tolerate harassment and will be
responsive to any student who reports that conduct.
In some
situations, a school may be required to provide other services to
the student who was harassed if necessary to address the effects of
the harassment on that student.[93]? For example, if an instructor gives a
student a low grade because the student failed to respond to his
sexual advances, the school may be required to make arrangements for
an independent reassessment of the student?s work, if feasible, and
change the grade accordingly; make arrangements for the student to
take the course again with a different instructor; provide tutoring;
make tuition adjustments; offer reimbursement for professional
counseling; or take other measures that are appropriate to the
circumstances.? As another example, if a school delays responding or
responds inappropriately to information about harassment, such as a
case in which the school ignores complaints by a student that he or
she is being sexually harassed by a classmate, the school will be
required to remedy the effects of the harassment that could have
been prevented had the school responded promptly and
effectively.
Finally, a
school should take steps to prevent any further harassment[94] and to prevent any retaliation against the
student who made the complaint (or was the subject of the
harassment), against the person who filed a complaint on behalf of a
student, or against those who provided information as witnesses.[95]? At a minimum, this includes making sure
that the harassed students and their parents know how to report any
subsequent problems and making follow-up inquiries to see if there
have been any new incidents or any retaliation.? To prevent
recurrences, counseling for the harasser may be appropriate to
ensure that he or she understands what constitutes harassment and
the effects it can have.? In addition, depending on how widespread
the harassment was and whether there have been any prior incidents,
the school may need to provide training for the larger school
community to ensure that students, parents, and teachers can
recognize harassment if it recurs and know how to respond.[96]
B. Confidentiality
The scope of a
reasonable response also may depend upon whether a student, or
parent of a minor student, reporting harassment asks that the
student?s name not be disclosed to the harasser or that nothing be
done about the alleged harassment.? In all cases, a school should
discuss confidentiality standards and concerns with the complainant
initially.? The school should inform the student that a
confidentiality request may limit the school?s ability to respond.?
The school also should tell the student that Title IX prohibits
retaliation and that, if he or she is afraid of reprisals from the
alleged harasser, the school will take steps to prevent retaliation
and will take strong responsive actions if retaliation occurs.? If
the student continues to ask that his or her name not be revealed,
the school should take all reasonable steps to investigate and
respond to the complaint consistent with the student?s request as
long as doing so does not prevent the school from responding
effectively to the harassment and preventing harassment of other
students.
OCR enforces
Title IX consistent with the federally protected due process rights
of public school students and employees.? Thus, for example, if a
student, who was the only student harassed, insists that his or her
name not be revealed, and the alleged harasser could not respond to
the charges of sexual harassment without that information, in
evaluating the school?s response, OCR would not expect disciplinary
action against an alleged harasser.
At the same
time, a school should evaluate the confidentiality request in the
context of its responsibility to provide a safe and
nondiscriminatory environment for all students.? The factors that a
school may consider in this regard include the seriousness of the
alleged harassment, the age of the student harassed, whether there
have been other complaints or reports of harassment against the
alleged harasser, and the rights of the accused individual to
receive information about the accuser and the allegations if a
formal proceeding with sanctions may result.[97]
Similarly, a
school should be aware of the confidentiality concerns of an accused
employee or student.? Publicized accusations of sexual harassment,
if ultimately found to be false, may nevertheless irreparably damage
the reputation of the accused.? The accused individual?s need for
confidentiality must, of course, also be evaluated based on the
factors discussed in the preceding paragraph in the context of the
school?s responsibility to ensure a safe environment for
students.
Although a
student?s request to have his or her name withheld may limit the
school?s ability to respond fully to an individual complaint of
harassment, other means may be available to address the harassment.?
There are steps a recipient can take to limit the effects of the
alleged harassment and prevent its recurrence without initiating
formal action against the alleged harasser or revealing the identity
of the complainant.? Examples include conducting sexual harassment
training for the school site or academic department where the
problem occurred, taking a student survey concerning any problems
with harassment, or implementing other systemic measures at the site
or department where the alleged harassment has occurred.
In addition, by
investigating the complaint to the extent possible ?? including by
reporting it to the Title IX coordinator or other responsible school
employee designated pursuant to Title IX ?? the school may learn
about or be able to confirm a pattern of harassment based on claims
by different students that they were harassed by the same
individual.? In some situations there may be prior reports by former
students who now might be willing to come forward and be identified,
thus providing a basis for further corrective action.? In instances
affecting a number of students (for example, a report from a student
that an instructor has repeatedly made sexually explicit remarks
about his or her personal life in front of an entire class), an
individual can be put on notice of allegations of harassing behavior
and counseled appropriately without revealing, even indirectly, the
identity of the student who notified the school.? Those steps can be
very effective in preventing further harassment.
C. Response to Other Types of
Notice
The previous
two sections deal with situations in which a student or parent of a
student who was harassed reports or complains of harassment or in
which a responsible school employee directly observes sexual
harassment of a student.? If a school learns of harassment through
other means, for example, if information about harassment is
received from a third party (such as from a witness to an incident
or an anonymous letter or telephone call), different factors will
affect the school?s response.? These factors include the source and
nature of the information; the seriousness of the alleged incident;
the specificity of the information; the objectivity and credibility
of the source of the report; whether any individuals can be
identified who were subjected to the alleged harassment; and whether
those individuals want to pursue the matter.? If, based on these
factors, it is reasonable for the school to investigate and it can
confirm the allegations, the considerations described in the
previous sections concerning interim measures and appropriate
responsive action will apply.
For example, if
a parent visiting a school observes a student repeatedly harassing a
group of female students and reports this to school officials,
school personnel can speak with the female students to confirm
whether that conduct has occurred and whether they view it as
unwelcome.? If the school determines that the conduct created a
hostile environment, it can take reasonable, age-appropriate steps
to address the situation.? If on the other hand, the students in
this example were to ask that their names not be disclosed or
indicate that they do not want to pursue the matter, the
considerations described in the previous section related to requests
for confidentiality will shape the school?s response.
In a
contrasting example, a student newspaper at a large university may
print an anonymous letter claiming that a professor is sexually
harassing students in class on a daily basis, but the letter
provides no clue as to the identity of the professor or the
department in which the conduct is allegedly taking place.? Due to
the anonymous source and lack of specificity of the information, a
school would not reasonably be able to investigate and confirm these
allegations.? However, in response to the anonymous letter, the
school could submit a letter or article to the newspaper reiterating
its policy against sexual harassment, encouraging persons who
believe that they have been sexually harassed to come forward, and
explaining how its grievance procedures work.
[Contents]
VIII. Prevention
A policy
specifically prohibiting sexual harassment and separate grievance
procedures for violations of that policy can help ensure that all
students and employees understand the nature of sexual harassment
and that the school will not tolerate it.? Indeed, they might even
bring conduct of a sexual nature to the school?s attention so that
the school can address it before it becomes sufficiently serious as
to create a hostile environment.? Further, training for
administrators, teachers, and staff and age-appropriate classroom
information for students can help to ensure that they understand
what types of conduct can cause sexual harassment and that they know
how to respond.
[Contents]
IX. Prompt and Equitable Grievance
Procedures
Schools are
required by the Title IX regulations to adopt and publish a policy
against sex discrimination and grievance procedures providing for
prompt and equitable resolution of complaints of discrimination on
the basis of sex.[98]? Accordingly, regardless of whether
harassment occurred, a school violates this requirement of the Title
IX regulations if it does not have those procedures and policy in
place.[99]
A school?s sex
discrimination grievance procedures must apply to complaints of sex
discrimination in the school?s education programs and activities
filed by students against school employees, other students, or third
parties.[100]? Title IX does not require a school to
adopt a policy specifically prohibiting sexual harassment or to
provide separate grievance procedures for sexual harassment
complaints.? However, its nondiscrimination policy and grievance
procedures for handling discrimination complaints must provide
effective means for preventing and responding to sexual harassment.?
Thus, if, because of the lack of a policy or procedure specifically
addressing sexual harassment, students are unaware of what kind of
conduct constitutes sexual harassment or that such conduct is
prohibited sex discrimination, a school?s general policy and
procedures relating to sex discrimination complaints will not be
considered effective.[101]
OCR has identified a
number of elements in evaluating whether a school?s grievance
procedures are prompt and equitable, including whether the
procedures provide for ??
- Notice to
students, parents of elementary and secondary students, and
employees of the procedure, including where complaints may be
filed;
- Application
of the procedure to complaints alleging harassment carried out by
employees, other students, or third parties;
- Adequate,
reliable, and impartial investigation of complaints, including the
opportunity to present witnesses and other evidence;
- Designated
and reasonably prompt timeframes for the major stages of the
complaint process;
- Notice to
the parties of the outcome of the complaint;[102] and
- An assurance
that the school will take steps to prevent recurrence of any
harassment and to correct its discriminatory effects on the
complainant and others, if appropriate.[103]
Many schools also
provide an opportunity to appeal the findings or remedy, or both.?
In addition, because retaliation is prohibited by Title IX, schools
may want to include a provision in their procedures prohibiting
retaliation against any individual who files a complaint or
participates in a harassment inquiry.
Procedures adopted by
schools will vary considerably in detail, specificity, and
components, reflecting differences in audiences, school sizes and
administrative structures, State or local legal requirements, and
past experience.? In addition, whether complaint resolutions are
timely will vary depending on the complexity of the investigation
and the severity and extent of the harassment.? During the
investigation it is a good practice for schools to inform students
who have alleged harassment about the status of the investigation on
a periodic basis.
A grievance procedure
applicable to sexual harassment complaints cannot be prompt or
equitable unless students know it exists, how it works, and how to
file a complaint.? Thus, the procedures should be written in
language appropriate to the age of the school?s students, easily
understood, and widely disseminated.? Distributing the procedures to
administrators, or including them in the school?s administrative or
policy manual, may not by itself be an effective way of providing
notice, as these publications are usually not widely circulated to
and understood by all members of the school community.? Many schools
ensure adequate notice to students by having copies of the
procedures available at various locations throughout the school or
campus; publishing the procedures as a separate document; including
a summary of the procedures in major publications issued by the
school, such as handbooks and catalogs for students, parents of
elementary and secondary students, faculty, and staff; and
identifying individuals who can explain how the procedures
work.
A school must
designate at least one employee to coordinate its efforts to comply
with and carry out its Title IX responsibilities.[104]? The school must notify all of its
students and employees of the name, office address, and telephone
number of the employee or employees designated.[105]? Because it is possible that an employee
designated to handle Title IX complaints may himself or herself
engage in harassment, a school may want to designate more than one
employee to be responsible for handling complaints in order to
ensure that students have an effective means of reporting
harassment.[106]? While a school may choose to have a
number of employees responsible for Title IX matters, it is also
advisable to give one official responsibility for overall
coordination and oversight of all sexual harassment complaints to
ensure consistent practices and standards in handling complaints.?
Coordination of recordkeeping (for instance, in a confidential log
maintained by the Title IX coordinator) will also ensure that the
school can and will resolve recurring problems and identify students
or employees who have multiple complaints filed against them.[107]? Finally, the school must make sure that
all designated employees have adequate training as to what conduct
constitutes sexual harassment and are able to explain how the
grievance procedure operates.[108]
Grievance
procedures may include informal mechanisms for resolving sexual
harassment complaints to be used if the parties agree to do so.[109]? OCR has frequently advised schools,
however, that it is not appropriate for a student who is complaining
of harassment to be required to work out the problem directly with
the individual alleged to be harassing him or her, and certainly not
without appropriate involvement by the school (e.g., participation
by a counselor, trained mediator, or, if appropriate, a teacher or
administrator).? In addition, the complainant must be notified of
the right to end the informal process at any time and begin the
formal stage of the complaint process.? In some cases, such as
alleged sexual assaults, mediation will not be appropriate even on a
voluntary basis.? Title IX also permits the use of a student
disciplinary procedure not designed specifically for Title IX
grievances to resolve sex discrimination complaints, as long as the
procedure meets the requirement of affording a complainant a ?prompt
and equitable? resolution of the complaint.
In some
instances, a complainant may allege harassing conduct that
constitutes both sex discrimination and possible criminal conduct.?
Police investigations or reports may be useful in terms of fact
gathering.? However, because legal standards for criminal
investigations are different, police investigations or reports may
not be determinative of whether harassment occurred under Title IX
and do not relieve the school of its duty to respond promptly and
effectively.[110]? Similarly, schools are cautioned about
using the results of insurance company investigations of sexual
harassment allegations.? The purpose of an insurance investigation
is to assess liability under the insurance policy, and the
applicable standards may well be different from those under Title
IX.? In addition, a school is not relieved of its responsibility to
respond to a sexual harassment complaint filed under its grievance
procedure by the fact that a complaint has been filed with OCR.[111]
[Contents]
X. Due Process Rights of the
Accused
A public
school?s employees have certain due process rights under the United
States Constitution.? The Constitution also guarantees due process
to students in public and State-supported schools who are accused of
certain types of infractions.? The rights established under Title IX
must be interpreted consistent with any federally guaranteed due
process rights involved in a complaint proceeding. Furthermore, the
Family Educational Rights and Privacy Act (FERPA) does not override
federally protected due process rights of persons accused of sexual
harassment.? Procedures that ensure the Title IX rights of the
complainant, while at the same time according due process to both
parties involved, will lead to sound and supportable decisions.? Of
course, schools should ensure that steps to accord due process
rights do not restrict or unnecessarily delay the protections
provided by Title IX to the complainant.? In both public and private
schools, additional or separate rights may be created for employees
or students by State law, institutional regulations and policies,
such as faculty or student handbooks, and collective bargaining
agreements.? Schools should be aware of these rights and their legal
responsibilities to individuals accused of harassment.
[Contents]
XI. First Amendment
In cases of
alleged harassment, the protections of the First Amendment must be
considered if issues of speech or expression are involved.[112]? Free speech rights apply in the classroom
(e.g., classroom lectures and discussions)[113] and in all other education programs and
activities of public schools (e.g., public meetings and speakers on
campus; campus debates, school plays and other cultural events[114]; and student newspapers, journals, and
other publications[115]).? In addition, First Amendment rights
apply to the speech of students and teachers.[116]
Title IX is
intended to protect students from sex discrimination, not to
regulate the content of speech.? OCR recognizes that the
offensiveness of a particular expression as perceived by some
students, standing alone, is not a legally sufficient basis to
establish a sexually hostile environment under Title IX.[117]? In order to establish a violation of
Title IX, the harassment must be sufficiently serious to deny or
limit a student?s ability to participate in or benefit from the
education program.[118]
Moreover, in
regulating the conduct of its students and its faculty to prevent or
redress discrimination prohibited by Title IX (e.g., in responding
to harassment that is sufficiently serious as to create a hostile
environment), a school must formulate, interpret, and apply its
rules so as to protect academic freedom and free speech rights.? For
instance, while the First Amendment may prohibit a school from
restricting the right of students to express opinions about one sex
that may be considered derogatory, the school can take steps to
denounce those opinions and ensure that competing views are heard.?
The age of the students involved and the location or forum may
affect how the school can respond consistently with the First
Amendment.[119]? As an example of the application of free
speech rights to allegations of sexual harassment, consider the
following:
Example
1:? In a college level creative writing class, a professor?s
required reading list includes excerpts from literary classics that
contain descriptions of explicit sexual conduct, including scenes
that depict women in submissive and demeaning roles.? The professor
also assigns students to write their own materials, which are read
in class.? Some of the student essays contain sexually derogatory
themes about women.? Several female students complain to the Dean of
Students that the materials and related classroom discussion have
created a sexually hostile environment for women in the class.? What
must the school do in response?
Answer:?
Academic discourse in this example is protected by the First
Amendment even if it is offensive to individuals.? Thus, Title IX
would not require the school to discipline the professor or to
censor the reading list or related class discussion.
Example
2:? A group of male students repeatedly targets a female student
for harassment during the bus ride home from school, including
making explicit sexual comments about her body, passing around
drawings that depict her engaging in sexual conduct, and, on several
occasions, attempting to follow her home off the bus.? The female
student and her parents complain to the principal that the male
students? conduct has created a hostile environment for girls on the
bus and that they fear for their daughter?s safety.? What must a
school do in response?
Answer:?
Threatening and intimidating actions targeted at a particular
student or group of students, even though they contain elements of
speech, are not protected by the First Amendment.? The school must
take prompt and effective actions, including disciplinary action if
necessary, to stop the harassment and prevent future
harassment.
[Contents]
Endnotes
[1] This guidance does not address sexual harassment
of employees, although that conduct may be prohibited by Title IX.?
20 U.S.C. 1681 et seq.; 34 CFR part 106, subpart E.? If
employees file Title IX sexual harassment complaints with OCR, the
complaints will be processed pursuant to the Procedures for
Complaints of Employment Discrimination Filed Against Recipients of
Federal Financial Assistance.? 28 CFR 42.604.? Employees are also
protected from discrimination on the basis of sex, including sexual
harassment, by Title VII of the Civil Rights Act of 1964.? For
information about Title VII and sexual harassment, see the Equal
Employment Opportunity Commission?s (EEOC?s) Guidelines on Sexual
Harassment, 29 CFR 1604.11, for information about filing a Title VII
charge with the EEOC, see 29 CFR 1601.7?1607.13, or see the EEOC?s
website at www.eeoc.gov.
[2] 20 U.S.C. 1681; 34 CFR part 106.
[3] See, e.g., Davis v. Monroe County Bd.
of Educ., 526 U.S. 629, 649-50 (1999); Gebser v. Lago Vista
Ind. Sch. Dist., 524 U.S. 274, 281 (1998); Franklin v.
Gwinnett County Pub. Sch., 503 U.S. 60, 75 (1992); S. REP. NO.
100-64, 100th Cong., 1st Sess. 14 (1987);?
Sexual Harassment Guidance:? Harassment of Students by School
Employees, Other Students, or Third Parties (1997 guidance), 62
FR 12034 (1997).
[4] As described in the section on ?Applicability,?
this guidance applies to all levels of education.
[5] For practical information about steps that
schools can take to prevent and remedy all types of harassment,
including sexual harassment, see ?Protecting Students from
Harassment and Hate Crime, A Guide for Schools,? which we issued
jointly with the National Association of Attorneys General.? This
Guide is available at our web site at:?
www.ed.gov/pubs/Harassment.
[6] See, e.g., Davis, 526 U.S. at 653
(alleged conduct of a sexual nature that would support a sexual
harassment claim included verbal harassment and ?numerous acts of
objectively offensive touching;? Franklin, 503 U.S. at 63
(conduct of a sexual nature found to support a sexual harassment
claim under Title IX included kissing, sexual intercourse);
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 60-61
(1986) (demands for sexual favors, sexual advances, fondling,
indecent exposure, sexual intercourse, rape, sufficient to raise
hostile environment claim under Title VII); Ellison v. Brady,
924 F.2d 872, 873-74, 880 (9th Cir. 1991) (allegations
sufficient to state sexual harassment claim under Title VII included
repeated requests for dates, letters making explicit references to
sex and describing the harasser?s feelings for plaintiff);
Lipsett v. University of Puerto Rico, 864 F.2d 881, 904-5
(1st Cir. 1988) (sexually derogatory comments, posting of
sexually explicit drawing of plaintiff, sexual advances may support
sexual harassment claim); Kadiki v. Virginia Commonwealth
University, 892 F.Supp. 746, 751 (E.D. Va. 1995) (professor?s
spanking of university student may constitute sexual conduct under
Title IX); Doe v. Petaluma, 830 F.Supp. 1560, 1564-65 (N.D.
Cal. 1996) (sexually derogatory taunts and innuendo can be the basis
of a harassment claim);? Denver School Dist. #2, OCR Case No.
08-92-1007 (same to allegations of vulgar language and obscenities,
pictures of nude women on office walls and desks, unwelcome
touching, sexually offensive jokes, bribery to perform sexual acts,
indecent exposure); Nashoba Regional High School, OCR Case
No. 01-92-1377 (same as to year-long campaign of derogatory,
sexually explicit graffiti and remarks directed at one
student.
[7] See also Shoreline School Dist., OCR Case
No. 10-92-1002 (a teacher?s patting a student on the arm, shoulder,
and back, and restraining the student when he was out of control,
not conduct of a sexual nature); Dartmouth Public Schools,
OCR Case No. 01-90-1058 (same as to contact between high school
coach and students); San Francisco State University, OCR Case
No. 09-94-2038 (same as to faculty advisor placing her arm around a
graduate student?s shoulder in posing for a picture); Analy Union
High School Dist., OCR Case No. 09-92-1249 (same as to drama
instructor who put his arms around both male and female students who
confided in him).
[8] 20 U.S.C. 1687 (codification of the amendment to
Title IX regarding scope of jurisdiction, enacted by the Civil
Rights Restoration Act of 1987).? See 65 FR 68049 (November 13,
2000) (Department?s amendment of the Title IX regulations to
incorporate the statutory definition of ?program or
activity?).
[9] If a school contracts with persons or
organizations to provide benefits, services, or opportunities to
students as part of the school?s program, and those persons or
employees of those organizations sexually harass students, OCR will
consider the harassing individual in the same manner that it
considers the school?s employees, as described in this guidance.?
(See section on ?Harassment by Teachers and Other Employees.?)? See
Brown v. Hot, Sexy, and Safer Products, Inc., 68 F.3d 525,
529 (1st Cir. 1995) (Title IX sexual harassment claim
brought for school?s role in permitting contract consultant hired by
it to create allegedly hostile environment).
In addition, if a student engages in sexual harassment as an
employee of the school, OCR will consider the harassment under the
standards described for employees.? (See section on ?Harassment by
Teachers and Other Employees.?)? For example, OCR would consider it
harassment by an employee if a student teaching assistant who is
responsible for assigning grades in a course, i.e., for providing
aid, benefits, or services to students under the recipient?s
program, required a student in his or her class to submit to sexual
advances in order to obtain a certain grade in the
class.
[10]? Cf. John Does 1 v. Covington County
Sch. Bd., 884 F.Supp. 462, 464-65 (M.D. Ala. 1995) (male
students alleging that a teacher sexually harassed and abused them
stated cause of action under Title IX).
[11] Title IX and the regulations implementing it
prohibit discrimination ?on the basis of sex;? they do not restrict
protection from sexual harassment to those circumstances in which
the harasser only harasses members of the opposite sex.? See 34 CFR
106.31.? In Oncale v. Sundowner Offshore Services, Inc. the
Supreme Court held unanimously that sex discrimination consisting of
same-sex sexual harassment can violate Title VII?s prohibition
against discrimination because of sex.? 523 U.S. 75, 82 (1998).? The
Supreme Court?s holding in Oncale is consistent with OCR
policy, originally stated in its 1997 guidance, that Title IX
prohibits sexual harassment regardless of whether the harasser and
the person being harassed are members of the same sex.? 62 FR
12039.? See also Kinman v. Omaha Public School Dist., 94 F.3d
463, 468 (8th Cir. 1996), rev?d on other grounds,
171 F.3d 607 (1999) (female student?s allegation of sexual
harassment by female teacher sufficient to raise a claim under Title
IX);? Doe v. Petaluma, 830 F.Supp. 1560, 1564-65, 1575 (N.D.
Cal. 1996) (female junior high student alleging sexual harassment by
other students, including both boys and girls, sufficient to raise a
claim under Title IX); John Does 1, 884 F.Supp. at 465 (same
as to male students? allegations of sexual harassment and abuse by a
male teacher.)? It can also occur in certain situations if the
harassment is directed at students of both sexes.? Chiapuzo v.
BLT Operating Corp., 826 F.Supp. 1334, 1337 (D.Wyo. 1993) (court
found that if males and females were subject to harassment, but
harassment was based on sex, it could violate Title VII); but see
Holman v. Indiana, 211 F.3d 399, 405 (7th Cir.
2000) (if male and female both subjected to requests for sex, court
found it could not violate Title VII).
In many circumstances, harassing conduct will be on the basis
of sex because the student would not have been subjected to it at
all had he or she been a member of the opposite sex; e.g., if a
female student is repeatedly propositioned by a male student or
employee (or, for that matter, if a male student is repeatedly
propositioned by a male student or employee.)? In other
circumstances, harassing conduct will be on the basis of sex if the
student would not have been affected by it in the same way or to the
same extent had he or she been a member of the opposite sex; e.g.,
pornography and sexually explicit jokes in a mostly male shop class
are likely to affect the few girls in the class more than it will
most of the boys.
In yet other circumstances, the conduct will be on the basis
of sex in that the student?s sex was a factor in or affected the
nature of the harasser?s conduct or both.? Thus, in Chiapuzo,
a supervisor made demeaning remarks to both partners of a married
couple working for him, e.g., as to sexual acts he wanted to engage
in with the wife and how he would be a better lover than the
husband.? In both cases, according to the court, the remarks were
based on sex in that they were made with an intent to demean each
member of the couple because of his or her respective sex.? 826
F.Supp. at 1337.? See also Steiner v. Showboat Operating Co.,
25 F.3d 1459, 1463-64 (9th Cir. 1994), cert.
denied, 115 S.Ct. 733 (1995); but see Holman, 211 F.3d at
405 (finding that if male and female both subjected to requests for
sex, Title VII could not be violated).
[12] Nashoba Regional High School, OCR Case
No. 01-92-1397.? In Conejo Valley School Dist., OCR Case No.
09-93-1305, female students allegedly taunted another female student
about engaging in sexual activity; OCR found that the alleged
comments were sexually explicit and, if true, would be sufficiently
severe, persistent, and pervasive to create a hostile
environment.
[13] See Williamson v. A.G. Edwards & Sons,
Inc., 876 F2d 69, 70 (8th Cir. 1989, cert.
denied 493 U.S. 1089 (1990); DeSantis v. Pacific Tel. &
Tel. Co., Inc., 608 F.2d 327, 329-30 (9th Cir.
1979)(same); Blum v. Gulf Oil Corp., 597 F.2d 936, 938
(5th Cir. 1979)(same).
[14] It should be noted that some State and local
laws may prohibit discrimination on the basis of sexual
orientation.? Also, under certain circumstances, courts may permit
redress for harassment on the basis of sexual orientation under
other Federal legal authority.? See Nabozny v. Podlesny, 92
F.3d 446, 460 (7th Cir. 1996) (holding that a gay student
could maintain claims alleging discrimination based on both gender
and sexual orientation under the Equal Protection Clause of the
United States Constitution in a case in which a school district
failed to protect the student to the same extent that other students
were protected from harassment and harm by other students due to the
student?s gender and sexual orientation).
[15] However, sufficiently serious sexual harassment
is covered by Title IX even if the hostile environment also includes
taunts based on sexual orientation.
[16] See also, Price Waterhouse v. Hopkins,
490 U.S. 228, 251 (1989) (plurality opinion) (where an accounting
firm denied partnership to a female candidate, the Supreme Court
found Title VII prohibits an employer from evaluating employees by
assuming or insisting that they match the stereotype associated with
their sex).
[17] See generally Gebser; Davis; See
also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66
(1986); Harris v. Forklift Systems Inc., 510 U.S. 14, 22
(1993); see also Hicks v. Gates Rubber Co., 833 F.2d
1406, 1415 (10th Cir. 1987) (concluding that harassment
based on sex may be discrimination whether or not it is sexual in
nature); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir.
1985) (physical, but nonsexual, assault could be sex-based
harassment if shown to be unequal treatment that would not have
taken place but for the employee?s sex); Cline v. General
Electric Capital Auto Lease, Inc., 757 F.Supp. 923, 932-33 (N.D.
Ill. 1991).
[18] See, e.g., sections on ?Harassment by Teachers
and Other Employees,? ?Harassment by Other Students or Third
Parties,? ?Notice of Employee, Peer, or Third Party Harassment,?
?Factors Used to Evaluate a Hostile Environment,? ?Recipient?s
Response,? and ?Prompt and Equitable Grievance
Procedures.?
[19]? See Lipsett, 864 F.2d at 903-905
(general antagonism toward women, including stated goal of
eliminating women from surgical program, statements that women
shouldn?t be in the program, and assignment of menial tasks,
combined with overt sexual harassment); Harris, 510 U.S. at
23; Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86
(3rd Cir. 1990) (court directed trial court to consider
sexual conduct as well as theft of female employees? files and work,
destruction of property, and anonymous phone calls in determining if
there had been sex discrimination); see also Hall v. Gus
Construction Co., 842 F.2d 1010, 1014 (8th Cir. 1988)
(affirming that harassment due to the employee?s sex may be
actionable even if the harassment is not sexual in nature);
Hicks, 833 F.2d at 1415; Eden Prairie Schools, Dist.
#272, OCR Case No. 05-92-1174 (the boys made lewd comments about
male anatomy and tormented the girls by pretending to stab them with
rubber knives; while the stabbing was not sexual conduct, it was
directed at them because of their sex, i.e., because they were
girls).
[20] Davis, 526 U.S. at 650 (?Having
previously determined that ?sexual harassment? is ?discrimination?
in the school context under Title IX, we are constrained to conclude
that student-on-student sexual harassment, if sufficiently severe,
can likewise rise to the level of discrimination actionable under
the statute.?); Franklin, 503 U.S. at 75 (?Unquestionably,
Title IX placed on the [school] the duty not to discriminate on the
basis of sex, and ?when a supervisor sexually harasses a subordinate
because of the subordinate?s sex, that supervisor ?discriminate[s]?
on the basis of sex.? ? We believe the same rule should apply when a
teacher sexually harasses and abuses a student.? (citation
omitted)).
OCR?s longstanding interpretation of its regulations is that
sexual harassment may constitute a violation.? 34 CFR 106.31; See
Sexual Harassment Guidance, 62 FR 12034 (1997).? When
Congress enacted the Civil Rights Restoration Act of 1987 to amend
Title IX to restore institution-wide coverage over federally
assisted education programs and activities, the legislative history
indicated not only that Congress was aware that OCR interpreted its
Title IX regulations to prohibit sexual harassment, but also that
one of the reasons for passing the Restoration Act was to enable OCR
to investigate and resolve cases involving allegations of sexual
harassment.? S. REP. NO. 64, 100th Cong., 1st
Sess. at 12 (1987).? The examples of discrimination that Congress
intended to be remedied by its statutory change included sexual
harassment of students by professors, id. at 14, and these
examples demonstrate congressional recognition that discrimination
in violation of Title IX can be carried out by school employees who
are providing aid, benefits, or services to students.? Congress also
intended that if discrimination occurred, recipients needed to
implement effective remedies.? S. REP. NO. 64 at 5.
[22] These are the basic regulatory requirements.?
34 CFR 106.31(a)(b).? Depending upon the facts, sexual harassment
may also be prohibited by more specific regulatory prohibitions.?
For example, if a college financial aid director told a student that
she would not get the student financial assistance for which she
qualified unless she slept with him, that also would be covered by
the regulatory provision prohibiting discrimination on the basis of
sex in financial assistance, 34 CFR 106.37(a).
[23] 34 CFR 106.31(b)(1).
[24] 34 CFR 106.31(b)(2).
[25] 34 CFR 106.31(b)(3).
[26] 34 CFR 106.31(b)(4).
[27] 34 CFR 106.31(b)(6).
[28] 34 CFR 106.31(b)(7).
[33] The 1997 guidance referred to quid pro
quo harassment and hostile environment harassment.? 62 FR
12038?40.
[34] See Alexander v. Yale University, 459
F.Supp. 1, 4 (D.Conn. 1977), aff?d, 631 F.2d 178
(2nd Cir. 1980)(stating that a claim ?that academic
advancement was conditioned upon submission to sexual demands
constitutes [a claim of] sex discrimination in education...?);
Crandell v. New York College, Osteopathic Medicine, 87
F.Supp.2d 304, 318 (S.D.N.Y. 2000) (finding that allegations that a
supervisory physician demanded that a student physician spend time
with him and have lunch with him or receive a poor evaluation, in
light of the totality of his alleged sexual comments and other
inappropriate behavior, constituted a claim of quid pro quo
harassment); Kadiki, 892 F.Supp. at 752 (reexamination in a
course conditioned on college student?s agreeing to be spanked
should she not attain a certain grade may constitute quid pro
quo harassment).
[36] Davis, 526 U.S. at 651 (confirming, by
citing approvingly both to Title VII cases (Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57,67 (1986) (finding that hostile
environment claims are cognizable under Title VII), and Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998)) and
OCR?s 1997 guidance, 62 FR at 12041-42, that determinations under
Title IX as to what conduct constitutes hostile environment sexual
harassment may continue to rely on Title VII
caselaw).
[37] 34 CFR 106.31(b).? See Davis, 526 U.S.
at 650 (concluding that allegations of student-on-student sexual
harassment that is ?so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the
educational opportunities or benefits? supports a claim for money
damages in an implied right of action).
[38] In Harris, the Supreme Court explained
the requirement for considering the ?subjective perspective? when
determining the existence of a hostile environment.? The Court
stated?? ?... if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the
conditions of the victim?s employment, and there is no Title VII
violation.?? 510 U.S. at 21-22.
[39] See Davis, 526 U.S. at 650 (conduct must
be ?objectively offensive? to trigger liability for money damages);
Elgamil v. Syracuse University, 2000 U.S. Dist. LEXIS 12598
at 17 (N.D.N.Y. 2000) (citing Harris); Booher v. Board of
Regents, 1998 U.S. Dist. LEXIS 11404 at 25 (E.D. Ky. 1998)
(same).? See Oncale, 523 U.S. at 81, in which the Court
?emphasized ? that the objective severity of harassment should be
judged from the perspective of a reasonable person in the [victim?s]
position, considering ?all the circumstances,?? and citing
Harris, 510 U.S. at 20, in which the Court indicated that a
?reasonable person? standard should be used to determine whether
sexual conduct constituted harassment.? This standard has been
applied under Title VII to take into account the sex of the subject
of the harassment, see, e.g., Ellison, 924 F.2d at 878-79
(applying a ?reasonable woman? standard to sexual harassment), and
has been adapted to sexual harassment in education under Title IX,
Patricia H. v. Berkeley Unified School Dist., 830 F.Supp.
1288, 1296 (N.D. Cal. 1993) (adopting a ?reasonable victim? standard
and referring to OCR?s use of it).
[40] See Davis, 526 U.S. at 651, citing both
Oncale, 523 U.S. at 82, and OCR?s 1997 guidance (62 FR
12041-12042).
[41] See, e.g., Davis, 526 U.S. at 634 (as a
result of the harassment, student?s grades dropped and she wrote a
suicide note); Doe v. Petaluma, 830 F. Supp. at 1566 (student
so upset about harassment by other students that she was forced to
transfer several times, including finally to a private school);
Modesto City Schools, OCR Case No. 09-93-1391 (evidence
showed that one girl?s grades dropped while the harassment was
occurring); Weaverville Elementary School, OCR Case No.
09-91-1116 (students left school due to the harassment).? Compare
with College of Alameda, OCR Case No. 09-90-2104 (student
not in instructor?s class and no evidence of any effect on student?s
educational benefits or service, so no hostile
environment).
[42] Doe v. Petaluma, 830 F.Supp. at
1566.
[43] See Waltman v. Int?l Paper Co., 875 F.2d
468, 477 (5th Cir. 1989) (holding that although not
specifically directed at the plaintiff, sexually explicit graffiti
on the walls was ?relevant to her claim?); Monteiro v. Tempe
Union High School, 158 F.3d 1022, 1033-34 (9th Cir.
1998) (Title VI racial harassment case, citing Waltman;
see also Hall, 842 F. 2d at 1015 (evidence of sexual
harassment directed at others is relevant to show hostile
environment under Title VII).
[44] See, e.g., Elgmil 2000 U.S. Dist. LEXIS
at 19 (?in order to be actionable, the incidents of harassment must
occur in concert or with a regularity that can reasonably be termed
pervasive?); Andrews, 895 F.2d at 1484 (?Harassment is
pervasive when ?incidents of harassment occur either in concert or
with regularity??); Moylan v. Maries County, 792 F.2d 746,
749 (8th Cir. 1986).
[45]? 34 CFR 106.31(b).? See Vance v. Spencer
County Public School District, 231 F.3d 253 (6th Cir.
2000); Doe v. School Admin. Dist. No. 19, 66 F.Supp.2d 57, 62
(D. Me. 1999).? See also statement of the U.S. Equal Employment
Opportunity Commission (EEOC):? ?The Commission will presume that
the unwelcome, intentional touching of [an employee?s] intimate body
areas is sufficiently offensive to alter the conditions of her
working environment and constitute a violation of Title VII.? More
so than in the case of verbal advances or remarks, a single
unwelcome physical advance can seriously poison the victim?s working
environment.?? EEOC Policy Guidance on Current Issues of Sexual
Harassment, 17.? Barrett v. Omaha National Bank, 584 F. Supp.
22, 30 (D. Neb. 1983), aff?d, 726 F. 2d 424 (8th
Cir. 1984) (finding that hostile environment was created under Title
VII by isolated events, i.e., occurring while traveling to and
during a two-day conference, including the co-worker?s talking to
plaintiff about sexual activities and touching her in an offensive
manner while they were inside a vehicle from which she could not
escape).
[46] See also Ursuline College, OCR Case No.
05-91-2068 (a single incident of comments on a male student?s
muscles arguably not sexual; however, assuming they were, not severe
enough to create a hostile environment).
[47] Davis, 526 U.S. at 653 (?The
relationship between the harasser and the victim necessarily affects
the extent to which the misconduct can be said to breach Title IX?s
guarantee of equal access to educational benefits and to have a
systemic effect on a program or activity.? Peer harassment, in
particular, is less likely to satisfy these requirements than is
teacher student harassment.?); Patricia H., 830 F. Supp. at
1297 (stating that the ?grave disparity in age and power? between
teacher and student contributed to the creation of a hostile
environment); Summerfield Schools, OCR Case No. 15-92-1929
(?impact of the ... remarks was heightened by the fact that the
coach is an adult in a position of authority?); cf. Doe v.
Taylor I.S.D., 15 F.3d 443, 460 (5th Cir. 1994) (Sec.
1983 case; taking into consideration the influence that the teacher
had over the student by virtue of his position of authority to find
that a sexual relationship between a high school teacher and a
student was unlawful).
[48] See, e.g., McKinney, 765 F.2d at
1138-49; Robinson v. Jacksonville Shipyards, 760 F. Supp.
1486, 1522 (M.D. Fla. 1991).
[49] Cf. Patricia H., 830 F. Supp. at
1297.
[50] See, e.g., Barrett, 584 F. Supp. at 30
(finding harassment occurring in a car from which the victim could
not escape particularly severe).
[51] See Hall, 842 F. 2d at 1015 (stating
that ?evidence of sexual harassment directed at employees other than
the plaintiff is relevant to show a hostile environment?) (citing
Hicks, 833 F. 2d, 1415-16).? Cf. Midwest City-Del
City Public Schools, OCR Case No. 06-92-1012 (finding of
racially hostile environment based in part on several racial
incidents at school shortly before incidents in complaint, a number
of which involved the same student involved in the
complaint).
[52] In addition, incidents of racial or national
origin harassment directed at a particular individual may also be
aggregated with incidents of sexual or gender harassment directed at
that individual in determining the existence of a hostile
environment.? Hicks, 833 F.2d at 1416; Jefferies v. Harris
County Community Action Ass?n, 615 F.2d 1025, 1032
(5th Cir. 1980).
[53] Does v. Covington Sch. Bd. of Educ., 930
F.Supp. 554, 569 (M.D. Ala. 1996); Henson v. City of Dundee,
682 F.2d 897, 903 (11th Cir. 1982).
[54] See Meritor Savings Bank, 477 U.S. at
68. ?[T]he fact that sex-related conduct was ?voluntary,? in the
sense that the complainant was not forced to participate against her
will, is not a defense to a sexual harassment suit brought under
Title VII....? The correct inquiry is whether [the subject of the
harassment] by her conduct indicated that the alleged sexual
advances were unwelcome, not whether her actual participation in
sexual intercourse was voluntary.?
[55] Lipsett, 864 F.2d at 898 (while, in some
instances, a person may have the responsibility for telling the
harasser ?directly? that the conduct is unwelcome, in other cases a
?consistent failure to respond to suggestive comments or gestures
may be sufficient....?); Danna v. New York Tel. Co., 752
F.Supp. 594, 612 (despite a female employee?s own foul language and
participation in graffiti writing, her complaints to management
indicated that the harassment was not welcome); see also Carr v.
Allison Gas Turbine Div. GMC., 32 F.3d 1007, 1011
(7th Cir. 1994) (finding that cursing and dirty jokes by
a female employee did not show that she welcomed the sexual
harassment, given her frequent complaints about it:? ?Even if ...
[the employee?s] testimony that she talked and acted as she did
[only] in an effort to be one of the boys is ... discounted, her
words and conduct cannot be compared to those of the men and used to
justify their conduct....? The asymmetry of positions must be
considered.? She was one woman; they were many men.? Her use of
[vulgar] terms ... could not be deeply
threatening....?).
[56] See Reed v. Shepard, 939 F.2d 484,
486-87, 491-92 (7th Cir. 1991) (no harassment found under
Title VII in a case in which a female employee not only tolerated,
but also instigated the suggestive joking activities about which she
was now complaining); Weinsheimer v. Rockwell Int?l Corp.,
754 F.Supp. 1559, 1563-64 (M.D. Fla. 1990) (same, in case in which
general shop banter was full of vulgarity and sexual innuendo by men
and women alike, and plaintiff contributed her share to this
atmosphere.)? However, even if a student participates in the sexual
banter, OCR may in certain circumstances find that the conduct was
nevertheless unwelcome if, for example, a teacher took an active
role in the sexual banter and a student reasonably perceived that
the teacher expected him or her to participate.
[57] The school bears the burden of rebutting the
presumption.
[58] Of course, nothing in Title IX would prohibit a
school from implementing policies prohibiting sexual conduct or
sexual relationships between students and adult
employees.
[60] Gebser, 524 U.S. at 281
(?Franklin ... establishes that a school district can be held
liable in damages [in an implied action under Title IX] in cases
involving a teacher?s sexual harassment of a student....?; 34 CFR
106.31; See 1997 Sexual Harassment Guidance, 62 FR
12034.
[61] See Davis, 526 U.S. at 653 (stating that
harassment of a student by a teacher is more likely than harassment
by a fellow student to constitute the type of effective denial of
equal access to educational benefits that can breach the
requirements of Title IX).
[62] 34 CFR 106.31(b).? Cf. Gebser,
524 U.S. at 283-84 (Court recognized in an implied right of action
for money damages for teacher sexual harassment of a student that
the question of whether a violation of Title IX occurred is a
separate question from the scope of appropriate remedies for a
violation).
[63] Davis, 526 U.S. at 646.
[64] See section on ?Applicability of Title IX? for
scope of coverage.
[65] See section on ?Notice of Employee, Peer, or
Third Party Harassment.?
[66] See section on ?Notice of Employee, Peer, or
Third Party Harassment.?
[69] See section on ?Notice of Employee, Peer, or
Third Party Harassment.?
[70] Cf. Davis, 526 U.S. at
646.
[73] Consistent with its obligation under Title IX
to protect students, cf. Gebser, 524 U.S. at 287, OCR
interprets its regulations to ensure that recipients take reasonable
action to address, rather than neglect, reasonably obvious
discrimination.? Cf. Gebser, 524 U.S. at 287-88;
Davis, 526 U.S. at 650 (actual notice standard for obtaining
money damages in private lawsuit).
[74] Whether an employee is a responsible employee
or whether it would be reasonable for a student to believe the
employee is, even if the employee is not, will vary depending on
factors such as the age and education level of the student, the type
of position held by the employee, and school practices and
procedures, both formal and informal.
The Supreme Court held that a school will only be liable for
money damages in a private lawsuit where there is actual notice to a
school official with the authority to address the alleged
discrimination and take corrective action.? Gebser, 524 U.S.
at 290, and Davis, 526 U.S. at 642.? The concept of a
?responsible employee? under our guidance is broader.? That is, even
if a responsible employee does not have the authority to address the
discrimination and take corrective action, he or she does have the
obligation to report it to appropriate school
officials.
[75] The Title IX regulations require that
recipients designate at least one employee to coordinate its efforts
to comply with and carry out its responsibilities under the
regulations, including complaint investigations.? 34 CFR
106.8(a).
[76] 34 CFR 106.31.? See Yates v. Avco Corp.,
819 F.2d 630, 636 (6th Cir. 1987); Katz v. Dole,
709 F.2d 251, 256 (4th Cir. 1983).
[77] For example, a substantiated report indicating
that a high school coach has engaged in inappropriate physical
conduct of a sexual nature in several instances with different
students may suggest a pattern of conduct that should trigger an
inquiry as to whether other students have been sexually harassed by
that coach.? See also Doe v. School Administrative Dist. No.
19, 66 F.Supp.2d 57, 63-64 and n.6 (D.Me. 1999) (in a private
lawsuit for money damages under Title IX in which a high school
principal had notice that a teacher may be engaging in a sexual
relationship with one underage student and did not investigate, and
then the same teacher allegedly engaged in sexual intercourse with
another student, who did not report the incident, the court
indicated that the school?s knowledge of the first relationship may
be sufficient to serve as actual notice of the second
incident).
[78] Cf. Katz, 709 F.2d at 256
(finding that the employer ?should have been aware of the problem
both because of its pervasive character and because of [the
employee?s] specific complaints ...?); Smolsky v. Consolidated
Rail Corp., 780 F.Supp. 283, 293 (E.D. Pa. 1991),
reconsideration denied, 785 F.Supp. 71 (E.D. Pa. 1992) ?where
the harassment is apparent to all others in the work place,
supervisors and coworkers, this may be sufficient to put the
employer on notice of the sexual harassment? under Title VII);
Jensen v. Eveleth Taconite Co., 824 F.Supp. 847, 887 (D.Minn.
1993); ?[s]exual harassment ... was so pervasive that an inference
of knowledge arises ....? The acts of sexual harassment detailed
herein were too common and continuous to have escaped Eveleth Mines
had its management been reasonably alert.?); Cummings v. Walsh
Construction Co., 561 F.Supp. 872, 878 (S.D. Ga. 1983) (?...
allegations not only of the [employee] registering her complaints
with her foreman ... but also that sexual harassment was so
widespread that defendant had constructive notice of it? under Title
VII); but see Murray v. New York Univ. College of Dentistry,
57 F.3d 243, 250-51 (2nd Cir. 1995) (concluding that
other students? knowledge of the conduct was not enough to charge
the school with notice, particularly because these students may not
have been aware that the conduct was offensive or
abusive).
[79] 34 CFR 106.9 and 106.8(b).
[80] 34 CFR 106.8(b) and 106.31(b).
[84] 34 CFR 106.31 and 106.3.? Gebser, 524
U.S. at 288 (?In the event of a violation, [under OCR?s
administrative enforcement scheme] a funding recipient may be
required to take ?such remedial action as [is] deem[ed] necessary to
overcome the effects of [the] discrimination.??
?106.3.?).
[85] 20 U.S.C. 1682.? In the event that OCR
determines that voluntary compliance cannot be secured, OCR may take
steps that may result in termination of Federal funding through
administrative enforcement, or, alternatively, OCR may refer the
case to the Department of Justice for judicial
enforcement.
[86] Schools have an obligation to ensure that the
educational environment is free of discrimination and cannot fulfill
this obligation without determining if sexual harassment complaints
have merit.
[87] In some situations, for example, if a
playground supervisor observes a young student repeatedly engaging
in conduct toward other students that is clearly unacceptable under
the school?s policies, it may be appropriate for the school to
intervene without contacting the other students.? It still may be
necessary for the school to talk with the students (and parents of
elementary and secondary students) afterwards, e.g., to determine
the extent of the harassment and how it affected
them.
[88] Gebser, 524 U.S. at 288; Bundy v.
Jackson, 641 F.2d 934, 947 (D.C. Cir. 1981) (employers should
take corrective and preventive measures under Title VII);
accord, Jones v. Flagship Int?l, 793 F.2d 714, 719-720
(5th Cir. 1986) (employer should take prompt remedial
action under Title VII).
[89] See Doe ex rel. Doe v. Dallas Indep. Sch.
Dist., 220 F.3d 380 (5th Cir. 2000) (citing
Waltman); Waltman, 875 F.2d at 479 (appropriateness of
employer?s remedial action under Title VII will depend on the
?severity and persistence of the harassment and the effectiveness of
any initial remedial steps?); Dornhecker v. Malibu Grand Prix
Corp., 828 F.2d 307, 309-10 (5th Cir. 1987); holding
that a company?s quick decision to remove the harasser from the
victim was adequate remedial action).
[90] See Intlekofer v. Turnage, 973 F.2d 773,
779-780 (9th Cir. 1992)(holding that the employer?s
response was insufficient and that more severe disciplinary action
was necessary in situations in which counseling, separating the
parties, and warnings of possible discipline were ineffective in
ending the harassing behavior).
[91] Offering assistance in changing living
arrangements is one of the actions required of colleges and
universities by the Campus Security Act in cases of rape and sexual
assault.? See 20 U.S.C. 1092(f).
[92] See section on ?Harassment by Other Students or
Third Parties.?
[93] University of California at Santa Cruz,
OCR Case No. 09-93-2141 (extensive individual and group counseling);
Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174
(counseling).
[94] Even if the harassment stops without the
school?s involvement, the school may still need to take steps to
prevent or deter any future harassment ?? to inform the school
community that harassment will not be tolerated.? Wills v. Brown
University, 184 F.3d 20, 28 (1st Cir. 1999)
(difficult problems are posed in balancing a student?s request for
anonymity or limited disclosure against the need to prevent future
harassment); Fuller v. City of Oakland, 47 F.3d 1522, 1528-29
(9th Cir. 1995) (Title VII case).
[95] 34 CFR 106.8(b) and 106.71, incorporating by
reference 34 CFR 100.7(e).? The Title IX regulations prohibit
intimidation, threats, coercion, or discrimination against any
individual for the purpose of interfering with any right or
privilege secured by Title IX.
[96] Tacoma School Dist. No. 10, OCR Case No.
10-94-1079 (due to the large number of students harassed by an
employee, the extended period of time over which the harassment
occurred, and the failure of several of the students to report the
harassment, the school committed as part of corrective action plan
to providing training for students); Los Medanos College, OCR
Case No. 09-84-2092 (as part of corrective action plan, school
committed to providing sexual harassment seminar for campus
employees); Sacramento City Unified School Dist., OCR Case
No. 09-83-1063 (same as to workshops for management and
administrative personnel and in-service training for non-management
personnel).
[97] In addition, if information about the incident
is contained in an ?education record? of the student alleging the
harassment, as defined in the Family Educational Rights and Privacy
Act (FERPA), 20 U.S.C. 1232g, the school should consider whether
FERPA would prohibit the school from disclosing information without
the student?s consent.? Id. ?In evaluating whether FERPA
would limit disclosure, the Department does not interpret FERPA to
override any federally protected due process rights of a school
employee accused of harassment.
[98] 34 CFR 106.8(b).? This requirement has been
part of the Title IX regulations since their inception in 1975.?
Thus, schools have been required to have these procedures in place
since that time.? At the elementary and secondary level, this
responsibility generally lies with the school district.? At the
postsecondary level, there may be a procedure for a particular
campus or college or for an entire university
system.
[99] Fenton Community High School Dist. #100,
OCR Case 05-92-1104.
[100] While a school is required to have a
grievance procedure under which complaints of sex discrimination
(including sexual harassment) can be filed, the same procedure may
also be used to address other forms of
discrimination.
[101] See generally Meritor, 477 U.S. at
72-73 (holding that ?mere existence of a grievance procedure? for
discrimination does not shield an employer from a sexual harassment
claim).
[102] The Family Educational Rights and Privacy Act
(FERPA) does not prohibit a student from learning the outcome of her
complaint, i.e., whether the complaint was found to be credible and
whether harassment was found to have occurred.? It is the
Department?s current position under FERPA that a school cannot
release information to a complainant regarding disciplinary action
imposed on a student found guilty of harassment if that information
is contained in a student?s education record unless ?? (1) the
information directly relates to the complainant (e.g., an order
requiring the student harasser not to have contact with the
complainant); or (2) the harassment involves a crime of violence or
a sex offense in a postsecondary institution.? See note 97.?
If the alleged harasser is a teacher, administrator, or other
non-student employee, FERPA would not limit the school?s ability to
inform the complainant of any disciplinary action
taken.
[103] The section in the guidance on ?Recipient?s
Response? provides examples of reasonable and appropriate corrective
action.
[106] See Meritor, 477 U.S. at
72-73.
[107] University of California, Santa Cruz,
OCR Case No. 09-93-2131.? This is true for formal as well as
informal complaints.? See University of Maine at
Machias, OCR Case No. 01-94-6001 (school?s new procedures not
found in violation of Title IX in part because they require written
records for informal as well as formal resolutions).? These records
need not be kept in a student?s or employee?s individual file, but
instead may be kept in a central confidential
location.
[108] For example, in Cape Cod Community
College, OCR Case No. 01-93-2047, the College was found to have
violated Title IX in part because the person identified by the
school as the Title IX coordinator was unfamiliar with Title IX, had
no training, and did not even realize he was the
coordinator.
[109] Indeed, in University of Maine at
Machias, OCR Case No. 01-94-6001, OCR found the school?s
procedures to be inadequate because only formal complaints were
investigated.? While a school isn?t required to have an established
procedure for resolving informal complaints, they nevertheless must
be addressed in some way.? However, if there are indications that
the same individual may be harassing others, then it may not be
appropriate to resolve an informal complaint without taking steps to
address the entire situation.
[110] Academy School Dist. No 20, OCR Case
No. 08-93-1023 (school?s response determined to be insufficient in a
case in which it stopped its investigation after complaint filed
with police); Mills Public School Dist., OCR Case No.
01-93-1123, (not sufficient for school to wait until end of police
investigation).
[111] Cf. EEOC v. Board of Governors of
State Colleges and Universities, 957 F.2d 424 (7th
Cir. 1992), cert. denied, 506 U.S. 906
(1992).
[112] The First Amendment applies to entities and
individuals that are State actors.? The receipt of Federal funds by
private schools does not directly subject those schools to the U.S.
Constitution.? See Rendell-Baker v. Kohn, 457 U.S. 830, 840
(1982).? However, all actions taken by OCR must comport with First
Amendment principles, even in cases involving private schools that
are not directly subject to the First Amendment.
[113] See, e.g., George Mason University,
OCR Case No. 03-94-2086 (law professor?s use of a racially
derogatory word, as part of an instructional hypothetical regarding
verbal torts, did not constitute racial harassment); Portland
School Dist. 1J, OCR Case No. 10-94-1117 (reading teacher?s
choice to substitute a less offensive term for a racial slur when
reading an historical novel aloud in class constituted an academic
decision on presentation of curriculum, not racial
harassment).
[114] See Iota Xi Chapter of Sigma Chi
Fraternity v. George Mason University, 993 F.2d 386
(4th Cir. 1993) (fraternity skit in which white male
student dressed as an offensive caricature of a black female
constituted student expression).
[115] See Florida Agricultural and Mechanical
University, OCR Case No. 04-92-2054 (no discrimination in case
in which campus newspaper, which welcomed individual opinions of all
sorts, printed article expressing one student?s viewpoint on white
students on campus.)
[116] Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 506 (1969) (neither students nor teachers
shed their constitutional rights to freedom of expression at the
schoolhouse gates); Cf. Cohen v. San Bernardino Valley
College, 92 F.3d 968, 972 (9th Cir. 1996) (holding
that a college professor could not be punished for his longstanding
teaching methods, which included discussion of controversial
subjects such as obscenity and consensual sex with children, under
an unconstitutionally vague sexual harassment policy); George
Mason University, OCR Case No. 03-94-2086 (law professor?s use
of a racially derogatory word, as part of an instructional
hypothetical regarding verbal torts, did not constitute racial
harassment.)
[117] See, e.g., University of Illinois, OCR
Case No. 05-94-2104 (fact that university?s use of Native American
symbols was offensive to some Native American students and employees
was not dispositive, in and of itself, in assessing a racially
hostile environment claim under Title VI.)
[118] See Meritor, 477 U.S. at 67 (the ?mere
utterance of an ethnic or racial epithet which engenders offensive
feelings in an employee? would not affect the conditions of
employment to a sufficient degree to violate Title VII), quoting
Henson, 682 F.2d at 904; cf. R.A.V. v. City of St.
Paul, 505 U.S. 377, 389 (1992) (citing with approval EEOC?s
sexual harassment guidelines); Monteiro, 158 F.3d at 1032-34
(9th Cir. 1998) (citing with approval OCR?s racial
harassment investigative guidance).
[119] Compare Bethel School Dist. No. 403
v. Fraser, 478 U.S. 675, 685 (1986) (Court upheld discipline of
high school student for making lewd speech to student assembly,
noting that ?[t]he undoubted freedom to advocate unpopular and
controversial issues in schools must be balanced against the
society?s countervailing interest in teaching students the
boundaries of socially appropriate behavior.?), with Iota
Xi, 993 F.2d 386 (holding that, notwithstanding a university?s
mission to create a culturally diverse learning environment and its
substantial interest in maintaining a campus free of discrimination,
it could not punish students who engaged in an offensive skit with
racist and sexist overtones). |