Part two of our series of articles examining key changes applicable to higher education institutions and contained in new Title IX regulations released by the U.S. Department of Education on April 19, 2024, addresses definitions set forth in § 106.2. A summary of pertinent changes follows.

Quick Hits

• “Complainant” is expressly extended beyond students and employees to include persons other than students or employees alleged to have been subjected to conduct that could constitute sex discrimination under Title IX.
• An institutional response is required following an oral request “that objectively can be understood” as a request for an investigation in addition to after receipt of a formal complaint filed by a complainant or signed by the Title IX coordinator.
• Allows an institution to require an employee or other person authorized by the institution to provide aid, benefit, or service to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing.

§ 106.2 Definitions

The final rule alters several key definitions in meaningful and impactful ways.

“Sex-based harassment,” which is prohibited by Title IX and is a form of sex discrimination, means “sexual harassment and other harassment on the basis of sex” that is: (1) quid pro quo harassment, (2) hostile environment harassment, or (3) a specific offense (categories identified in the current regulations).

“Quid pro quo harassment” occurs when “[a]n employee, agent, or other person authorized by the recipient to provide an aid, benefit, or service under the recipient’s education program or activity explicitly or impliedly condition[s] the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.”

“Hostile environment harassment” involves “[u]nwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment).” It is a fact-specific inquiry to determine whether a hostile environment has been created, and the following factors may be considered in making such a determination:

1. “The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity”;
2. “The type, frequency, and duration of the conduct”;
3. “The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct”;
4. “The location of the conduct and the context in which the conduct occurred”; and
5. “Other sex-based harassment in the recipient’s education program or activity.”

The final rule does not alter the specific offenses that may constitute sex-based harassment.

The final rule also makes clear that institutions are not required “to adopt a particular definition of consent, where that term is applicable with respect to sex-based harassment.”

Complainant

While the current regulations define “complainant” to mean “an individual who is alleged to be the victim of conduct that could constitute sexual harassment,” the final rule provides clarity by modifying the definition to include: (1) “[a] student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX,” or (2) “[a] person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX … and who was participating or attempting to participate in the recipient’s education program or activity at the time of the alleged sex discrimination.” Similarly, while the current regulations define “respondent” to mean “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment,” the final rule modifies the definition to mean “a person who is alleged to have violated the recipient’s prohibition on sex discrimination.”

Complaint

While the current regulations require a response to a “formal complaint,” meaning a document filed by a complainant or signed by the Title IX coordinator, the final rule expands this requirement by defining a “complaint” as “an oral or written request to the recipient that objectively can be understood as a request for the recipient to investigate and make a determination about alleged discrimination under Title IX.”

New Definitions

The final rule includes multiple new definitions, including the following:

A “confidential employee” is defined as: (1) “[a]n employee of a recipient whose communications are privileged or confidential under Federal or State law,” and whose confidential status is “only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies”; (2) an employee of a recipient whom the recipient has designated as confidential for the purpose of providing services to persons related to sex discrimination [if the employee also has a duty not associated with providing those services, the employee’s confidential status is only with respect to information received about sex discrimination in connection with providing those services]; or (3) an employee of a postsecondary institution who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination. However, “the employee’s confidential status is only with respect to information received while conducting the study.”

“Disciplinary sanctions” is defined as “consequences imposed on a respondent following a determination under Title IX that the respondent violated the recipient’s prohibition on sex discrimination.”

“Peer retaliation” means “retaliation by a student against another student.”

“Relevant” is defined as being “related to the allegations of sex discrimination under investigation as part of the grievance procedures.” The final rule clarifies that “[q]uestions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged sex discrimination occurred.”

“Remedies” means “measures provided, as appropriate, to a complainant or any other person the recipient identifies as having had their equal access to the recipient’s education program or activity limited or denied by sex discrimination.” Per the final rule, remedies “are provided to restore or preserve [a] person’s access to the recipient’s education program or activity after a recipient determines that sex discrimination occurred.”

Although the final rule includes a definition for “retaliation” that tracks the current language found in § 106.71, the newly added definition makes clear that “[n]othing … precludes a recipient from requiring an employee or other person authorized by a recipient to provide aid, benefit, or service under the recipient’s education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing.” Institutions may want to consider a policy requiring employees to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing when requested.

There are also new, self-explanatory definitions for terms such as “parental status,” “party,” “pregnancy or related conditions,” and “student with a disability.” The latter is defined as a student who is an individual with a disability as defined in the Rehabilitation Act of 1973.

Key Takeaways

The final regulations are effective August 1, 2024, and apply to complaints of sex discrimination regarding alleged conduct that occurs on or after that date.

These regulations are currently only available in an unofficial version. In addition, the department has released a fact sheet, a summary of the major provisions of the final regulations, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.

Part one of this series addressed grievance procedures for resolving complaints of sex discrimination, and sex-based harassment at postsecondary institutions. Additional articles in the series will address the recipient’s response to allegations of sex discrimination; and key changes regarding parental, family, or marital status, and pregnancy and related conditions.