October 3, 2022

Volume XII, Number 276

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September 30, 2022

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The Office of Civil Rights Significantly Changes How Civil Rights Complaints Are Investigated

The U.S. Department of Education Acting Assistant Secretary for Civil Rights (OCR) recently issued instructions to all OCR Regional Directors, addressing the scope of OCR investigations in cases currently in evaluation or investigation and for newly-filed complaints.

Key aspects of the instructions include:

  • “Effective immediately, there is no mandate that any one type of complaint is automatically treated differently than any other type of complaint with respect to the scope of the investigation, the type or amount of data needed to conduct the investigation, or the amount or type of review or oversight needed over the investigation by Headquarters.”

  • “In particular, OCR will no longer follow the existing investigative rule of obtaining three (3) years of past complaint data/files in order to assess a recipient’s compliance….”

    • Instead the investigative team will have the power to determine what comparative data (Civil Rights Data Collection or other) are necessary to determine if others who are similarly situated were treated the same or different as the complainant.

  • “There is no longer a ‘one size fits all’ approach to the investigation of any category of complaints.

    • The investigation team will “determine on a case-by-case basis the type and scope of the evidence that is necessary to support a legally sound investigation and determination”; framed in scope by the particulars of the allegation.

    • “OCR will only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”

  • There is no longer a “sensitive case” or “call home” list that requires that the OCR headquarters be closely involved or handle matters. 

These changes will certainly impact the approach taken by OCR to Title IX investigations which in the recent past, even if initially filed by only a single complainant regarding a single incident, have included a wide ranging review of an institution’s practices, policies and three years of information regarding Cleary incidents and Title IX related investigations and activities. These investigations often took on a “systemic” nature. Many investigations took years to complete, even if started by only a single complainant contesting a single decision. The new guidelines are likely to result in more targeted investigations (perhaps more in line with single complainant EEOC charges) and the production of less documentation as a result of an investigation.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VII, Number 180
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About this Author

Jennifer Ewan, Michael Best Law Firm, Corporate and Real Estate Attorney
Senior Counsel

As senior counsel, Jenn provides guidance and support to startup and growth phase companies, as well as advice on a wide variety of employment and corporate matters. In 2017, she completed Level I and II Title IX investigator training through Atixa and is now certified to fully investigate Title IX complaints.

Prior to joining Michael Best, Jenn worked at the Missoula Economic Partnership (MEP), where she pro-actively identified and courted related investment opportunities, maintained strong funding partner relationships, scoped, implemented,...

406-218-2283
Amy Schmidt Jones, Labor compliance Attorney, Michael Best, EEOC legal counsel,
Partner, Practice Group Chair, Labor & Employment Relations

Clients look to Amy to provide pragmatic, strategic counsel in managing the full spectrum of legal issues that arise out of the employment relationship. Amy collaborates with her clients to identify and understand their objectives, which serve as the touchstone in every engagement.

Amy is an accomplished employment litigator whom clients rely on for high stakes employment disputes. She practices extensively in state and federal court and in contested proceedings before administrative agencies. Amy has successfully represented clients at trial (...

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Daniel Kaufman, Michael Best, trade secret protection attorney, higher education lawyer,
Partner

Clients turn to Dan because he is an outstanding litigator and a trusted advisor on employment issues. His deep knowledge of employment law, exceptional judgment, and strategic advice enable clients to achieve their goals.

Businesses, colleges and universities, municipalities, and other clients rely on Dan’s proven litigation experience and proactive counsel on a broad range of issues, including:

  • Discrimination and harassment suits

  • Non-compete, non-solicitation, and...

312-836-5077
Jose Olivieri, Michael Best Law Firm, Higher Education, Labor and Immigration Attorney
Partner, Industry Group Chair

José is the founder and co-chair of Michael Best’s immigration law practice. Clients depend on his deep knowledge of and experience with U.S. immigration law and employment-based immigration matters, including:

  • Immigration status

  • Permanent labor certification

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  • Citizenship and...

414-225-4967
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