How to Successfully Navigate Title IX and Title VII Requirements as a HR Professional – A Primer
February 20, 2020
It’s the first day of class, and you receive an anonymous hotline complaint about an employee’s sexually harassing conduct towards a subordinate.
Follow your tried-and-true employment discrimination complaint process developed under Title VII, that familiar civil rights law that bars employment discrimination, and you’re good, right?
For most institutions engaged in educational programs and activities and accept federal funding, both Title VII (the law barring employment discrimination) and Title IX (the law barring gender discrimination in educational programs) govern the rights and responsibilities of the institutions and their employees.[i]
As a practical matter, what risks and roadblocks does this create?
Currently, Title VII and Title IX employ similar and familiar legal concepts and analyses. However, there are important conflicts and inconsistencies.
Key distinctions that may apply during your internal complaint process that HR professionals need to know include:
- Depending on your institution’s Title IX policy, every person may be a mandatory reporter of sexual misconduct, creating additional duties of care.
- Title IX requires that the employer consider using interim and supportive measures that are not customary in Title VII cases. Interim measures include altering job duties, moving work space, and the use of no contact orders.
- Title IX requires that the investigation and resolution process be “trauma informed,” a concept not historically a part of employment discrimination complaint processes.
- Title IX claims at some institutions require a hearing model, which contrasts with the investigation model used in the vast majority of Title VII employment matters.
- Under Title IX mediation is generally prohibited for cases involving sexual violence.
- Title IX requires specialized training of those involved in the process, while Title VII only requires a reasonable, good faith investigation.
Key distinctions in administrative complaints with governmental agencies include:
- Under Title VII, a plaintiff must first file with an administrative agency such as the Equal Employment Opportunity Commission (“EEOC”) before heading to court. There is no such requirement under Title IX, where an employee can proceed directly to federal court.
- Under Title VII, employees generally have a relatively brief window to file administrative charges with the EEOC or state agency (within 180 or 300 days depending on the claim). Under Title IX claim, employees can wait to file for two or three years to file in court (depending on the applicable state law statute of limitations for personal injury cases).
- Anyone (a spouse, community member, witness) can file a Title IX administrative complaint with the Office of Civil Rights. Such complaints are permissive and not required, can be filed with the Office of Civil Rights within 180 days.
Key distinctions in damages available under the two laws include:
- There is no cap on Title IX damages, while Title VII damages are capped by statute.
- Punitive damages are available under Title VII, but not under Title IX.
Finally, it is important to note that new federal Title IX regulations are expected soon. While their final content is unknown, the draft regulations, if adopted without revisions, would result in radical changes to the resolution of workplace sexual misconduct claims. Under the proposed new Title IX regulations, here are just a few of the changes:
- The participation of attorneys and opportunity to cross examination in internal proceedings.
- Live hearings, as opposed to investigations.
- A presumption that the person accused is “not responsible,” as opposed to the Title VII lack of any presumption for or against any party.
- A narrower definition of sexual harassment.
- A warning about the penalties for false claims.
- No obligation to act unless “actual notice” by a decision maker with authority to act. Under Title VII, constructive notice and respondent superior theory can be sufficient to trigger an obligation to act.
HR professionals working for institutions engaged in educational programs and activities should proactively learn about the interplay between these two important civil rights laws and their sometimes inconsistent obligations. Working with counsel who understands both Title IX and Title VII can help you synthesize these complex obligations.
Pamela Connelly will be continuing to post a deeper dive on Title IX and Title VII. You can reach out to Ms. Connelly at firstname.lastname@example.org or (412) 281-5423 with any questions or to discuss.
[i] The United States Courts of Appeals for the First, Third, Fourth, Sixth and Eighth Circuits have held that Titles VII and IX apply concurrently. The Fifth and Seventh Circuits have disagreed.