August 9, 2022

Volume XII, Number 221


August 08, 2022

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U.S. Department of Education Proposes Amendments to Title IX Regulations

In conjunction with the 50th anniversary of Title IX, the U.S. Department of Education has released its proposed amendments to the regulations for Title IX of the Education Amendments of 1972 for public comment.

According to Assistant Secretary for Civil Rights Catherine E. Lhamon, “The proposed regulations reflect the Department’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved.”

The proposed regulations make the following key changes to existing Title IX regulations:

  • Live hearings will no longer be required at the postsecondary level; schools can determine what fair and reliable process works best for its community, including use of a single-investigator model.

  • Although a live hearing is not required, a decision-maker must assess the credibility of parties and witnesses through live questioning.

  • A recipient would be required to address sex-based discrimination in its education program or activity, including when sex-based discrimination occurred outside the recipient’s education program or activity or outside the United States.

The proposed regulations clarify:

  • Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and students who are pregnant or experiencing pregnancy-related conditions.

  • Preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations.

  • A framework will be provided tailored to sex-based harassment complaints at postsecondary institutions, taking into account students’ age, maturity, needs, and level of independence.

Under the proposed rules schools must continue to:

  • Treat complainants and respondents equitably.

  • Ensure Title IX coordinators, investigators, decision-makers, and facilitators of an informal

  • resolution process do not have a conflict of interest or bias for or against complainants

  • or respondents generally or an individual complainant or respondent.

  • Provide a grievance procedure that gives the parties an equal opportunity to present

  • relevant evidence and respond to the relevant evidence of other parties.

  • Use the preponderance-of-the-evidence or the clear-and-convincing-evidence standard in all

  • other comparable proceedings, including other discrimination complaints, in which case

  • the school may use that standard in determining whether sex discrimination occurred.

  • Not impose disciplinary sanctions under Title IX on any person, unless it determines that sex discrimination has occurred.

Under the proposed rules, school have the option of continuing to:

  • Provide informal resolution for resolving sex discrimination complaints.

The Department also announced that it will release a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletics team.

The public may submit comments for 60 days from the date of publication in the Federal Register.

The Department also issued a Fact Sheet regarding the proposed regulations.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 175

About this Author

Susan D. Friedfel Employment law attorney for educational instituions in White Plains, NY of Jackson Lewis law firm

Susan D. Friedfel is a Principal in the White Plains and New York, New York, offices of Jackson Lewis P.C.

Ms. Friedfel collaborates with clients to find practical solutions for a variety of issues that arise in the workplace. She counsels clients in various industries, including law firms, financial institutions, educational institutions, and not-for-profit organizations, on a wide array of issues.

Susan D. Friedfel  provides advice and counsel on matters such as:

  • employee recruiting and hiring practices
  • family and medical leave
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Monica H. Khetarpal, Litigation Experience, Discrimination, Wage and Hour Violations, Jackson Lewis Law Firm

Monica H. Khetarpal is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. Her litigation experience includes cases involving claims for discrimination, harassment, wage and hour violations, FMLA violations, disability discrimination and requests for accommodation in both single plaintiff and class action matters. She regularly handles matters at all levels, from administrative agencies to appeals in both state and federal courts.

Ms. Khetarpal focuses a significant portion of her practice on representing higher education clients and serves as co...

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Carol R. Ashley is of counsel in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Laura Ahrens Labor & Employment Litigation Attorney Jackson Lewis Law Firm South Carolina

Laura Ahrens is an associate in the Greenville, South Carolina, office of Jackson Lewis P.C. Laura represents employers in workplace law matters, and enjoys collaborating with her clients to find practical solutions to the variety of issues that arise in the workplace.

Laura is a member of the firm’s General Employment Litigation practice group. She represents employers in various employment and labor matters, including claims of discrimination, harassment, and retaliation brought under Title VII and the ADA. She also...