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In the 2001 OCR Guidance and the 2017 Q&A, OCR stresses the importance of having a well-publicized and effective grievance procedure in place to handle all sex discrimination complaints, one type of which may be sexual harassment allegations. OCR notes that having:
“…Strong policies and effective grievance procedures are essential to let students and employees know that sexual harassment will not be tolerated and to ensure that they know how to report it.”
The guidance stresses that schools benefit from having a strong grievance procedure because it provides the school with a mechanism for discovering sexual harassment as early as possible and for remedying the effects of the harassment once it is determined to have happened. School policies and procedures signal, the guidance contends, that sexual harassment will not be tolerated and that actions will happen if it does occur.
Schools must have procedures that do not hamper reporting or prompt action regarding sexual harassment allegations. If such blocks are in place, the school will be found to have violated Title IX and must take steps to remedy harm to victims caused by these blocks to effective and prompt action to stop, remedy and/or prevent a hostile environment.
The Guidance documents include specific information as to the elements that OCR has identified in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the procedures provide for the following:
Notice to students, parents of K-12 students and school employees of the procedure, including where complaints may be filed;
Application of the school’s grievance procedure to complaints alleging harassment carried out by employees, other students or third parties;
Adequate, impartial and reliable complaint investigation (including the opportunity to present witnesses and other evidence);
Designated and reasonably prompt time frames for the major stages of the investigative process;
Notice to the parties of the outcome of the complaint investigation; and,
An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the victim and others (if appropriate).
The procedures must be understandable to students, in language appropriate to students, and widely disseminated. The Guidance clearly states, “Distributing the procedures to administrators, or including them in the school’s administrative or policy manual, may not by itself be an effective way of providing notice…” Policies and procedures may vary widely among schools in specificity, detail and components to reflect local norms and State or other pertinent laws or regulations.
OCR recognizes that timeliness may be strongly affected by the complexity of an investigation and the severity or extent of the harassment that it is investigating. OCR states, “There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”
The OCR also outlines what constitutes an equitable investigation. The guidance states that:
The burden is on the school to gather sufficient evidence to reach a fair, impartial determination as to whether sexual harassment has occurred and if a hostile environment was created.
A trained investigator is required to analyze and document the available evidence to support reliable decisions and objectively evaluate the credibility of parties and witnesses and all available evidence.
All rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.
The school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview.
The reporting and responding parties and appropriate officials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings.
In November 2019, a draft of the proposed Title IX federal regulations being developed by the OCR was released. Any change in interpretation and procedures will have a direct impact on your school district and your ability to comply with Title IX. You will be held accountable for knowing and implementing the changes. Our team at McGrath is committed to helping you understand and comply with these updates so you can keep the people and district you care about safe from harm and liability. Click here to learn more about McGrath’s training programs.
Mary Jo McGrath, JD and Billie-Jo Grant, PhD are nationally recognized experts on sxl harassment and misconduct, having served as the expert witness in nearly 100 civil court cases of school employee sxl misconduct. They have trained more than 250,000 school district administrators and employees nationwide in how to have schools be safer, more effective learning environments.