New Title IX Regs – Six Weeks to Implementation: Complaints

As the Title IX regulation implementation date—August 14, 2020—creeps closer, it’s important to understand the new processes for handling complaints and practical steps to take now to ensure compliance.

Complaints - What you need to know

Although “actual knowledge” of allegations of sexual harassment triggers several obligations on the part of an institution, the new regulations make clear that an institution is only obligated to conduct an investigation and initiate a grievance procedure when it receives a “formal complaint.”

“Actual knowledge” is defined in the regulations to mean notice of sexual harassment provided to an institution’s Title IX Coordinator “or any official of the [institution] who has authority to institute corrective measures on behalf of the [institution].” An institution may, and arguably should, narrowly define those individuals who have authority to institute corrective measures (the regulations state that the mere ability or obligation to report sexual harassment does not mean that an individual has authority to institute corrective measures).

A “formal complaint,” by contrast, is any document filed and signed (physically or digitally) by the alleged victim of sexual harassment or the Title IX Coordinator, alleging sexual harassment against a respondent and requesting that the institution investigate the allegation of sexual harassment. Importantly, there is no time limit on an alleged victim’s decision to file a formal complaint.

A Title IX Coordinator may file a formal complaint with or without the alleged victim’s desire to participate in the investigation or grievance process. The DOE cautions, however, that the Title IX Coordinator should file a formal complaint against an alleged victim’s desires only when a non-deliberately indifferent response to the allegations by the school requires an investigation, “not as an automatic result that occurs any time a recipient has notice that a complainant was allegedly victimized by sexual harassment.”

When an institution has “actual knowledge” of sexual harassment, the Title IX Coordinator must promptly:

1. contact the complainant to discuss the availability of supportive measures,
2. consider the complainant’s wishes with respect to supportive measures,
3. inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and
4. explain to the complainant the process for filing a formal complaint.

For formal complaints, the Title IX Coordinator must also:

1. Provide Notice. Complainants and respondents must receive notice of the allegations of sexual harassment, including details about the allegations, identities of the parties, and the date and location of the alleged incident. The notice must also include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination of responsibility will be made at the conclusion of the grievance process; notification that the parties have the right to an advisor of their choice; notification that the parties have a right to inspect evidence; and a code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
2. Investigate the Allegations. The institution must investigate a formal complaint. We will discuss the requirements of a compliant investigation in a subsequent alert. These requirements include providing both sides with an equal opportunity to present and inspect evidence and requiring trained investigators to prepare an investigative report.
3. Initiate a Grievance Process. The determination of whether to hold a respondent responsible for the alleged sexual harassment and to impose disciplinary sanctions must be made pursuant to a grievance process. We will discuss the requirements of a grievance process in a subsequent alert. These requirements include an objective evaluation of all relevant evidence, a presumption of innocence, prompt time frames, and a live hearing (for post-secondary institutions).

Complaints - What you need to do

• Designate your ‘‘Title IX Coordinator’’ and define who within your institution has the authority to institute corrective measures on behalf of the institution. You must notify applicants for admission and employment; students; parents or legal guardians of elementary and secondary school students; employees; and any unions or professional organizations, of the name, title, office address, email address, and telephone number of the employee(s) designated as the Title IX Coordinator(s). It is also good practice to notify students who has the authority to institute corrective measures.
• Clarify on your website and in your policies the ways in which formal complaints can be submitted to the Title IX Coordinator. Formal complaints may be filed with the Title IX Coordinator in person, by mail, by email, or by any additional method you designate. Update any online portal provided for this purpose to accept a complainant’s physical or digital signature.
• Ensure your Title IX Coordinator is trained in what is required to respond to both actual knowledge and formal complaints.
• Create a template notice form that contains the requirements outlined above.

This is the third in a series of alerts regarding the new Title IX regulations. We will address other big picture changes, and their practical effects, in the coming weeks as we get closer to the implementation deadline.