March 1, 2017
Employers in education are familiar with Title IX of the Education Amendments of 1972 and its applicability to all schools receiving federal funding. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX applies to students and employees, and impacts decisions pertaining to admissions, athletics, funding, employment of women as faculty and administrators, sexual harassment, and testing. For employees (including faculty), Title IX is an additional overlay to other federal laws protecting employees from gender-based discrimination, including Title VII.
To comply with Title IX, schools must follow certain procedures including disseminating a notice of nondiscrimination, designating an employee as a Title IX Coordinator to coordinate the school’s Title IX efforts, and adopting and publishing procedures facilitating prompt and equitable resolution of student and employee sex discrimination complaints.
Other laws also may impact a school’s course of action, including the Family Educational Rights and Privacy Act (FERPA), and the Violence Against Women Reauthorization Act of 2013 (VAWA). See April 4, 2011 OCR Dear Colleague Letter (discussing Title IX procedures and FERPA) and July 22, 2015 DOE Dear Colleague Letter (summarizing changes to VAWA). Nexsen Pruet’s Title IX Team is experienced in training and advising educational employers on compliance (including drafting policies and procedures for students, staff, and faculty), as well as serving as investigators or adjudicators of sex discrimination or harassment investigations or as advisors to schools handling these issues.
When a school knows or reasonably should know of possible gender-based discrimination or harassment, whatever the context, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. This can involve a student or employee in various roles, and our employment team is prepared to assist educational institutions grappling with Title IX and other legal issues at every turn. Involving counsel in training and at the initial reporting of harassment or discrimination is likely to save expense and exposure later down the road. The number of lawsuits brought against universities involved in Title IX investigations has increased significantly in recent years. Many of the cases involve students and employees filing various causes of action arising from sex discrimination or harassment, including breach of contract, defamation, and negligence, in addition to employment discrimination and retaliation, and other employment claims that may arise when a school employee is involved.
Our Title IX team can help educational employers respond to complaints in a prompt and equitable manner and ensure grievance procedures are clear and purposeful so that over time the risk of gender-based discrimination is reduced. Furthermore, we can consult with schools in forming policies and procedures for students and employees, and when concerns are raised, we can guide the school through the process so as to reduce the likelihood of litigation or exposure.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.