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On July 12, 2022, the Department of Education issued a notice of proposed rulemaking for the Title IX regulations. This means that the Department is proposing amendments to the regulations that address sex discrimination in educational institutions that receive federal financial assistance, including many private schools.  

The proposed regulations would drastically change some of Title IX’s regulations. Below is a brief summary of the most notable proposed regulation changes. Please note that these are simply proposed regulations; the final version may differ from the current proposed rules. Prior to issuing its final rules, the Department considers comments and concerns voiced by the public. Therefore, it may be worthwhile for your institution to submit a comment to express your position of support or opposition to the proposed changes by the September 12th deadline.

New Concepts

Broader Coverage and Sex Discrimination Protections

The proposed regulations would significantly expand Title IX coverage by obligating employers to address hostile environment claims based on conduct that occurred outside of the institution or outside of the United States. The proposed Title IX regulations would also expand the current understanding and definition of sex discrimination to include discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

LGBT + Regulations / Athletics

The proposed regulations state that preventing any person from participating in an education program or activity consistent with their gender identity would generally be prohibited, unless otherwise permitted by Title IX or the regulations. Consistent with current Department guidance, LGBT+ students and employees would be protected from sexual harassment and discrimination based on their sexual orientation and gender identity. The most common question, of course, is how this protection translates to transgender athletes, especially in the wake of recent national controversy regarding transgender athletes competing on teams that conform with their gender identities. However, the Department noted that it plans to issue a separate notice of proposed rulemaking regarding athletics that will address issues such as eligibility to participate on male and female athletics teams.

Students with Disabilities

The proposed regulations would add requirements for responding to situations involving students with disabilities. Currently, there are no Title IX regulations specific to students with disabilities.

Peer Retaliation

The proposed regulations would go beyond prohibiting retaliation by an institution to also prohibit retaliation by a student against another student. This is a brand-new concept for the Title IX regulations, as the current regulations do not use the term “peer retaliation.” Educational institutions would be required to prohibit and address peer retaliation.

Pregnancy and other Related Conditions

The proposed regulations contain a significant focus on pregnancy-related issues by prohibiting discrimination in admission against any person on the basis of current, potential, or past pregnancy or related conditions. “Pregnancy or related conditions” is defined broadly to include pregnancy, childbirth, termination of pregnancy, lactation and any related medical conditions or recovery from any of these conditions.

The proposed regulations also provide break time and lactation space for employees. The FLSA already requires employers to provide breaks to non-exempt nursing mothers. So, these regulations would expand these break entitlements to exempt employees in states (like Florida) that do not already provide for breaks for exempt nursing moms. Pregnancy-related issues could implicate a variety of employment laws, including the FLSA, Title VII and the Pregnancy Discrimination Act, the Americans with Disabilities Act, and various other regulations and state laws.

The proposed regulations would also require accommodations for pregnant students at all levels, such as allowing a voluntary leave of absence with reinstatement to the same academic and, where possible, extracurricular status upon return.

Major Procedural Changes

One game-changing aspect of the proposed regulations is that they eliminate the live hearing requirement for postsecondary institutions. The proposed regulations are intended to allow more flexibility for resolving complaints and make live hearings optional.  Therefore, institutions that desire to keep their current live hearing procedure in place could do so according to the proposed rule. But, as a practical matter, institutions would need to ensure that their process would not conflict with the new rules if enacted (e.g., the appropriate standard of proof would need to be employed).

Institutions should be aware of the more nuanced changes or variations to the current regulations that the Department of Education is proposing. For example, mandatory dismissals of complaints would not be required, so institutions could dismiss complaints when the institution deems dismissal appropriate; institutions would have the discretion to decide whether to provide written investigative reports or to provide parties with access to the relevant evidence; and formal, written complaints would not be required to trigger the institution’s obligation to respond to sex discrimination. The proposed regulations also add procedural requirements that would apply to complaints of sex-based harassment involving a student at a postsecondary institution.

Additionally, the proposed regulations change the notification requirements for an institution by requiring that certain employees notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination (with different requirements depending on the employee’s role, whether the complainant is a student or employee, and whether an institution is a postsecondary or elementary/secondary school). The proposed regulations would require certain employees to take certain actions when they have information about a fellow employee being subjected to sex discrimination, so the proposed regulations pose significant employment-related ramifications as well. The proposed notification requirements could broaden the potential exposure to liability for institutions by expanding the types of employees who have a duty to take action upon learning of sex discrimination. If these proposed regulations are enacted, institutions should review their employment policies to determine whether their policies comply with the Title IX notification requirements. These proposed notification requirements would be a major shift from the current regulations, particularly for postsecondary institutions.

Conclusion

The proposed changes in this brief summary are not exhaustive and institutions should consider commenting on provisions of interest. Gunster will continue closely monitoring the Title IX rulemaking process. We will also host an informational webinar once the final Title IX regulations are published.

You may read the Proposed Rule and submit comments here.

Please direct any questions to Gunster attorney Nalani Gordon.

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