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How the New Title IX Rules Will Impact the Definition of Sexual Harassment

Title IX By Harvey Binnall PLLC - 2020/08/31 at 12:53pm

Title IX sexual misconduct and harassment claims have come under substantial scrutiny over the past decade, with various attempts to impose clear and reasonable guidance for educational institutions to enforce said claims.  On August 14, 2020, new rules came into effect that will alter the enforcement of Title IX sexual harassment claims significantly.

At a glance, the new Title IX rules for sexual harassment give greater protection to the accused, who have — since the Obama-era rules changes — been subjected to many disadvantages in Title IX proceedings.

Though it is not clear how these will be precisely implemented “in practice,” there are some fundamental conclusions we can draw based on the changes.  Let’s take a closer look at how the new rules will impact Title IX proceedings going forward.

“Unwelcome Conduct” in Title IX Sexual Harassment

Under the new rules set forth by the Department of Education, sexual harassment — aside from specific instances that always count (per se sexual harassment, such as sexual assault, dating violence, domestic violence, and stalking) — has a stricter definition than before.

More specifically, sexual harassment is now defined as any unwelcome conduct that is so severe, pervasive, and offensive (objectively) that it effectively prevents the victimized individual from accessing the institution’s educational programs or activities in an equivalent manner to others.

This is a change from the requirement that sexual harassment be unwelcomed conduct that merely “impeded” such access.  Further, there was no objectively offensive requirement in the past, which may prove to be an additional barrier to the accused having liability imposed on them through Title IX proceedings — as what a reasonable person may consider unwelcome conduct is not necessarily going to be the same as a more sensitive individual who is claiming to be a victim of sexual harassment.

Institutional Control

With the new rules, universities must only react with Title IX enforcement when the sexual harassment at-issue has occurred in the context of an educational program or activity, and only insofar as the harassment took place in the United States.  The purpose of this restriction is to ensure that a university is only required to intervene in situations where they exercised substantial control (and as such, it would be relevant that the institution be involved in handling the matter).

So, how will this impact sexual harassment claims under Title IX?

Suppose that you are in off-campus housing (that is unrelated to the school).  It’s possible that sexual misconduct tied to that off-campus housing would not come under the purview of the institution’s Title IX enforcement umbrella.

Similarly, suppose that you are on a trip abroad with a school group.  If an accusation of sexual misconduct arises from an incident that occurred during that trip, it may not be subject to Title IX enforcement.

If you’ve been accused of sexual harassment under Title IX, then it’s important that you consult with a qualified attorney for guidance on how best to proceed — these disputes can be uniquely challenging, with their own set of procedures and limitations.  As such, a thorough approach is encouraged.