As the 2020-2021 school year presses on, schools continue to navigate the evolving COVID-19 landscape. Like many aspects of daily life, the events of 2020 have forever changed public education. In addition to the pandemic stressors, schools have scrambled to understand the full impact of the 2020 Title IX Final Rule addressing employee allegations of sexual harassment or gender discrimination.

This first entry in a three-part series presented by the Education Law team at Appel, Yost & Zee offers our current take on the intersection of Title IX and Title VII in the context of public school employment.

The Title IX Final Rule sets forth detailed procedural requirements with which public school entities must comply. Those requirements, however, likely conflict with the established Title VII procedures long-implemented by public school entities. The confusion doesn’t end there. This summer, the Supreme Court issued a decision in Bostock v. Clayton County, Georgia, ruling that sex under Title VII includes sexual orientation and gender identity discrimination. In the waning hours of the Trump administration, the United States Department of Education issued guidance analyzing the definition of sex under Title IX, apparently attempting to limit the application of Bostock to just Title VII, not Title IX.

Public school entities are accustomed to responding to allegations of sexual harassment under Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for a school to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of their employment because of such individual’s race, color, religion, sex, or national origin. Sexual harassment rises to the level of sex discrimination under Title VII when it is sufficiently severe or pervasive to alter the conditions of the individual’s employment and creates an abusive working environment.

 Title IX also applies to incidents involving only employees because it specifically protects employees of educational institutions against sex discrimination and harassment. Notably, the new rule requires that schools adopt and publish grievance procedures to address sexual harassment complaints brought by employees. Sexual harassment under Title IX becomes unlawful if it is severe, pervasion, and objectively offense.

So as a threshold issue for public schools, Title VII and Title IX set out different standards for what constitutes unlawful sexual harassment (i.e., severe or pervasive, versus severe, pervasive and objectively offensive).

Despite recognizing these different standards, the Department of Education did not see any conflict between the laws. The Department of Education made clear that public school entities “should comply with both Title VII and Title IX, to the extent these laws apply, and nothing in these final regulations precludes a [public school entity] from complying with Title VII.” Further, the Department stated that “[t]here is no inherent conflict between Title VII and Title IX, and employers may comply with the requirements under Title VII and Title IX.”

 With this position from the Department of Education, employee allegations of sexual harassment will force public school entities to simultaneous navigate two applicable laws with differing legal standards and procedural requirements.

This morning, President Biden issued Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

Ch-ch-ch-ch-changes…

Part two of this three-part Client Alert series will review notable specific differences between the implementation requirements of Title VII and Title IX.

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.