The Biden Administration issued an Executive Order addressing Title IX making clear that the new administration will review and potentially scale-back much of the Title IX 2020 Final Rule. That effort, however, will be subject to the formal – and likely lengthy – notice and rulemaking process. Until then, public schools will need to continue to implement last year’s changes.

This second entry in a three-part series presented by the Education Law team at Appel, Yost & Zee provides a review of notable specific differences between the implementation requirements of Title VII and Title IX, intending to assist clients in navigating the application of these laws in the employment context.

The most notable difference between the Title IX 2020 Final Rule and existing Title VII precedent is the definition of sexual harassment in the context of a hostile work environment. Employers are accustomed to applying the Title VII standard, which defines unlawful sexual harassment as “severe, pervasive or objectively offensive.” The Department of Education considered and, ultimately, rejected this definition. Instead, the new regulations define hostile work environment sexual harassment under Title IX as “severe, pervasive, and objectively offensive.” In effect, Title IX has a more narrow definition. This creates the very real possibility of an employment situation where an employee has engaged in sexual harassment under Title VII, but not under Title IX.

Other significant differences include the following:

• The Title IX 2020 Final Rule includes strict jurisdictional limitations as part of its procedural requirements. In short, employers must know whether the alleged conduct occurred within its educational program and whether the employer has the legal authority to take action.

• The Title IX 2020 Final Rule sets out more narrow notice requirements. Employees must make proper notice to the employer of the allegations, and the employer may only conduct a formal investigation if certain documentation is provided. Title VII, however, has far more relaxed reporting requirements and requires multiple reporting avenues (which is a key element if the alleged harasser is within the employee’s line of supervision).

• If procedural requirements are not fulfilled under Title IX, employers can be required to dismiss the complaint. Title VII, however, does not include similar draconian requirements.

• An employer’s exposure to liability from their response – or lack of a response – also differs. To be liable under Title IX, an employer must have actual knowledge yet respond with deliberate indifference. This is more narrow than Title VII, which more broadly requires employers to exercise reasonable care to prevent and correct promptly any harassment.

• An employer’s ability to compel employee participation in an investigation also differs. Under Title IX, employees may refuse to participate in an investigation and employers may not retaliate against them for doing so. Under Title VII, however, employers often mandate employee cooperation in investigations.

• Under Title IX, an employer can dismiss a formal complaint if the employee-respondent is no longer employed.

• The Title IX 2020 Final Rule makes clear that employers may not restrict a participant’s ability to discuss those allegations that are subject to the investigation. In effect, school employers have less ability to control confidentiality during investigation under Title IX than they have during investigations under Title VII.

When implementing these procedures, employers must remain cognizant of the potential repercussions or steps that could follow. This includes understanding the scope and nature of the remedial scheme of both Title XI and Title VII, such as whether an employee must first exhaust remedies with an administrative agency such as the EEOC or PHRC, whether there is a cap on potential damages, and the nature of the available damages, including punitive damages.

Part three of this series will provide a detailed discussion on the implementation of these procedural requirements in the employment context, including practical guidance and best practice suggestions for navigating these competing requirements while minimizing liability exposure.

 If you have questions regarding your obligations under these provisions of the law, please reach out to William J. Zee in the Appel, Yost & Zee Education Law Group.