Filed Under: Confidential Employee
Could a recipient voluntarily adopt a policy that allows a confidential employee to report to the Title IX Coordinator if a complainant wanted them to, case-by-case? Or does this language prohibit such an approach: The Department declines to adopt a commenter’s suggestion to give students the option of whether to have a confidential employee keep a disclosure confidential or have that employee report it to the Title IX Coordinator. The Department is concerned that this approach could create confusion among students and employees as to whether and when a confidential employee has received appropriate consent to report to the Title IX Coordinator. The Department notes that final § 106.44(d)(2), as revised, requires a confidential employee to provide sufficient guidance to enable the student to report to the Title IX Coordinator by providing the student with information about how to contact the Title IX Coordinator and how to make a complaint of sex discrimination.
Under the 2024 Title IX regulations, a recipient may not voluntarily adopt a policy that allows a confidential employee to report conduct that reasonably may constitute sex discrimination to the Title IX Coordinator when a complainant wants the confidential employee to do so. In the preamble to the 2024 Title IX regulations, “[t]he Department decline[d] to adopt a commenter’s suggestion to give students the option of whether to have a confidential employee keep a disclosure confidential or have that employee report it to the Title IX Coordinator.” 89 FR 33584. The Department expressed concern that “this approach could create confusion among students and employees as to whether and when a confidential employee has received appropriate consent to report to the Title IX Coordinator.” Id.
Allowing confidential employees to notify the Title IX Coordinator based on their case-by-case assessments of a complainant’s wishes may lead to uncertainty about the duties of the confidential employee and about whether the complainant unambiguously wants the confidential employee to report the conduct. In addition, under § 106.45(b)(7)(i), evidence provided to a confidential employee must be excluded as impermissible unless the complainant has waived that confidentiality. The Department has recognized “the need to protect information shared with confidential employees and the expectation that such information would be excluded from the grievance procedures.” 89 FR 33676. Allowing confidential employees to report conduct to the Title IX Coordinator when requested by the complainant could lead to confusion about whether and to what extent the complainant intends to waive their confidentiality and permit information shared with the confidential employee to be used in the grievance procedures.
Section 106.44(d)(2) requires a confidential employee to provide the complainant with information about how to contact the Title IX Coordinator and how to make a complaint of sex discrimination. Nothing in the 2024 Title IX regulations prohibits a confidential employee from assisting a complainant who seeks to report the conduct—e.g., by accompanying the complainant to the Title IX office or helping the complainant to submit their complaint.