Filed Under: Hostile Environment
In the July 2022 NPRM, the Department provided the example of a student who reports that his peers repeatedly denigrated him as “girly” over a period of weeks. 87 FR 41417. In this example, if one peer made a one-off remark calling the student “girly,” that alone may not be severe or pervasive enough to create a hostile environment, but if multiple peers repeatedly call the student “girly,” then that same treatment may create a hostile environment for that student. Similarly, if one student at a postsecondary institution made a derogatory comment to a pregnant student based on her pregnancy, that alone may not be sufficient to create a hostile environment, but if multiple people make similar comments to the same student based on pregnancy, that may create a hostile environment for the student. The Department notes that, when the elements of sex-based hostile environment are satisfied for an affected student, a recipient has an obligation to address that hostile environment, even if a particular respondent’s conduct does not justify discipline. For example, in response to a hostile environment created by a series of incidents by different respondents, a recipient may offer supportive measures to the affected student or provide training for the broader school community.” Understood, but in the process of investigating this, to determine if it is severe or pervasive, who is the respondent? Is this addressed the same way other investigations would be under the regs, since we still need to determine if a hostile environment has been created?
A recipient would investigate alleged sex-based harassment involving a series of incidents by different respondents the same way it would investigate other allegations of sex-based harassment under its grievance procedures even though there would be multiple respondents. As explained in the preamble to the 2024 Title IX regulations, if the recipient determines that the series of incidents taken together satisfy the requirements for hostile environment sex-based harassment the recipient has an obligation to address the hostile environment for the complainant. 89 FR 33514. In these situations, it may be the case that because no individual incident standing alone satisfies the requirements for hostile environment sex-based harassment there is no justification to discipline the individual respondents. Id. Even if the recipient does not discipline the individual respondents the recipient may still offer supportive measures to the complainant or provide training for the broader school community to address the hostile environment that was created by the incidents taken together. Id.