Confidentiality ≠ Privacy, and What is Privilege?

By Alisha Carter Harris, M.S., Consultant, TNG

As recipients of federal funding (i.e., schools, colleges) across the country prepare to implement another iteration of Title IX regulations in 2023, they should thoughtfully consider how their institution will designate confidential employees and which employees will be mandated reporters. Although these decisions are not new, the proposed rule significantly alters current reporting requirements for postsecondary recipients, and all recipients will need to review their practices to ensure compliance with the proposed rule, once implemented. During this review, recipients should reorient themselves to the concepts of confidentiality, privacy, and privilege. Although these terms are often viewed as interchangeable, they have distinct meanings under the proposed rule. Confidentiality ≠ privacy and although privileged communications are confidential, not all confidential communications are privileged. Recipients will need to ensure their entire workforce is trained on their respective roles; the concepts of confidentiality, privacy, and privilege; and their shared responsibility to create a community free of sex discrimination. The Association of Title IX Administrators (“ATIXA”) recommends that a reasonable number of recipient employees be deemed confidential by the recipient, when permissible, to ensure that students and employees have a safe space to seek advice, support, and explore options without triggering a formal Title IX response.

Confidentiality and Confidential Employees

Confidential employees are designated by the recipient and are not required to report harassment, discrimination, or retaliation to Title IX coordinator, barring a true emergency.^[1] The current regulations prohibit K-12 schools from designating confidential employees; however, the proposed rule will allow K-12 recipients to appoint confidential employees. The proposed rule defines “confidential employee” as:

1. A recipient employee whose communications are privileged under federal or state law associated with their role or duties for the institution.
2. A recipient employee whom the recipient has designated as a confidential resource for the purpose of providing services to persons in connection with sex discrimination – but if the employee also has a role or duty not associated with providing these services, the employee’s confidential status is limited to information received about sex discrimination in connection with providing these services.
3. A postsecondary employee who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination – but the employee’s confidential status is limited to information received while conducting the study.^[2]

The proposed rule continues the idea that confidential employees may be classified as confidential by the recipient or may be confidential because of their licensure (e.g., a mental health professional). Although not required to report incidents that may violate the Title IX policy involving employees or students of which they become aware to the Title IX coordinator, the proposed rule requires that confidential employees provide these individuals with the Title IX coordinator’s contact information and information related to the recipient’s Title IX program. The proposed rule also mandates that recipients notify the community of who is considered a confidential employee, and that those employees explain their confidential status when a conversation about a potential Title IX issue arises during the scope of their employment. It may be worthwhile to clarify in policy that confidential employees may report what they know to the Title IX office, if the person reporting to them gives permission. Confidentiality, privacy, and privilege are all “owned” and waivable by the person who is disclosing, not by the provider, official, or administrator. As recipients consider differences between privacy, confidentiality, and privilege, each offers successively greater levels of protection from release.

Training Tips

When designing training for confidential employees, recipients should ensure they include information related to the following topics:

• Communication between confidential employees and employees or students reporting/disclosing information that may violate the Title IX policy is privileged (discussed in more detail below). Confidential employees cannot reveal this information to any third party except when an applicable law or court order requires or permits disclosure of such information, such as:
  • The employee or student gives written consent for its disclosure
  • There is a concern that the employee or student will likely cause serious physical harm to self or others
  • The information concerns conduct involving suspected abuse or neglect of a minor under the age of 18, elders, or individuals with disabilities
  • The confidentiality of the communication is provided by recipient policy only
• De-identified information may be shared by confidential postsecondary employees for statistical tracking purposes as required by the Clery Act.
• Employees who hold a professional license but are not employed by the recipient under this licensure (i.e.,a biology faculty member who is also a licensed mental health counselor), must understand that their communications with recipient employees or students are not considered confidential and they are required to adhere to the reporting requirements of their position with the recipient.
• Course and scope matter as well. For example, a campus chaplain may be confidential, but only to the extent of their role as chaplain. Disclosures made to them in their additional role as a professor of religious studies are not protected and must be disclosed to the Title IX office.

Privacy and Recipient Employee Responsibilities

For the purpose of Title IX compliance under the current regulations and the proposed rule, privacy means that information related to a sex discrimination complaint will be shared with a limited number of recipient employees who “need to know” in order to provide supportive measures or assist in the assessment, investigation, and resolution of a sex discrimination complaint. All employees who are involved in the recipient’s response to sex discrimination are required to receive specific training and guidance about sharing and safeguarding private information in accordance with federal and state law.

The proposed rule expands the current regulatory training requirement for recipients to include all employees rather than only those involved in the Title IX resolution process. The only real change made to K-12 employee reporting requirements is the addition of confidential employees; however, the proposed rule significantly expands employee reporting requirements in the postsecondary environment. The proposed rule eliminates the Officials with Authority (“OWA”) construct that exists in the current regulations and replaces it with a much more complex reporting model.^[3] Postsecondary recipients who do not designate all non-confidential employees as mandated reporters (which the new regulations will still allow recipients to do) will be required to adopt the following reporting structure:

• Employees with Authority to Institute Corrective Measures – this category of employees replaces the current OWA construct. When these employees receive disclosures from students or employees that they may have been subjected to conduct in violation of Title IX, these employees are required to (1) notify the Title IX coordinator of all information disclosed to them and (2) provide the individual with information related to the Title IX program at the institution and how to contact the Title IX coordinator.
• Employees with Administrative Leadership, Teaching, or Advising Roles – this employee category has the same reporting requirements as above regarding reports from or about students. When the report is about an employee, these individuals may either (1) notify the Title IX coordinator of the information disclosed to them or (2) provide the individual with information related to the Title IX program at the institution and how to contact the Title IX coordinator. Recipients should note that the proposed rule broadly defines advising to include academic advising and student organization advisors.
• All Other Employees – when an employee or student reports information that may implicate the Title IX policy to employees in this category, the employee has the option to either (1) report the information directly to the Title IX coordinator, or (2) provide the individual with information about the recipient’s Title IX program and how to contact the Title IX coordinator.

It has long been ATIXA’s position and a best practice that postsecondary recipients designate all non-confidential employees as mandated reporters, with carve-outs as noted above to ensure that additional confidential options beyond those who are confidential by law/license are available. These could include prevention staff members, victim advocates, women’s center employees, ombudspersons, etc. Recipients who choose this position will have a much easier time training their employees and complying with other federal laws such as the Clery Act, in tandem with the Violence Against Women Reauthorization Act of 2013, and Title VII of the Civil Rights Act of 1964.

Training Tips

Recipients, through their Title IX coordinator, will be required by the 2023 regulations to train all employees on:

• The recipient’s obligation to address sex discrimination in its education program or activity.
• The scope of conduct that constitutes sex discrimination, including the definition of sex-based harassment.
• All applicable notification and information requirements for pregnant students and employees with regard to their duty to report information to the Title IX coordinator.

Recipients will be required to comply with the proposed rule; however, there are also several other steps recipients can take to incorporate best practices into their Title IX training programs.

• Train employees on all applicable policies and procedures. More and more courts are implying a training requirement into Title IX and negligence cases, well beyond what regulations require. Ensure employees understand how to infuse privacy best practices into their responsibilities under Title IX.
• Provide employees with several examples and case studies of incidents that would trigger their responsibility to report to the Title IX coordinator. This includes training employees to understand information that is not packaged in a way that uses direct policy language like harassment, stalking, violence, abuse, etc.
• Train employees annually but also provide periodic updates throughout the year, so employees think about their reporting responsibility more often than once a year as a compliance activity.
• Attach employee training compliance to annual evaluation requirements (e.g., employees who refuse to participate in required training are ineligible for annual merit increases).
• Create a Title IX steering committee with a broad constituency of employees and student leaders to ensure community investment in the Title IX program.
• Work with various constituency groups (e.g., faculty/staff senate, student government, unions, school boards, student clubs, parents/guardians, parent/teacher associations) to ensure broad information dissemination and community buy-in with respect to the Title IX program.

Privilege

Under federal and state laws, a privileged communication is an interaction between two individuals in which the law recognizes a private protected relationship. All communication between these individuals must remain confidential, and the law cannot typically compel their disclosure. This privilege attaches or belongs to the recipient of these services and the licensed professional will communicate this information to their client. Examples of privileged relationships include attorney/client, doctor/patient, priest/parishioner, and spousal relationships. As previously mentioned, there are exceptions to these laws, and the recipient employees who are required to maintain privileged communication with their clients will need to understand these requirements as part of the conditions of their licensure.

It is imperative that recipients who designate employees as confidential under policy understand that the law does not protect the communication between these employees and their clients. This is the difference between an employee designated as confidential by policy, and employees deemed confidential by operation of law or licensure. Therefore, when employees are designated as confidential under recipient policy, and do not hold a professional license that confers privilege, recipients should ensure that these employees understand the limitations of the privacy of their communications with their clients and communicate these limitations to their clients. While the recipient should not compel the sharing of confidential information between clients and unlicensed confidential employees, the law may not recognize these communications as private and may compel these employees to share “confidential” information.

Training Tips

• Ensure employees understand the confines of their role, particularly those who do not hold a professional license and are acting as confidential employees under policy only. Legal confidentiality exists when a statute prohibits disclosure. Ethical confidentiality exists when a license or ethics rule prohibits release, but a statute does not.
• Ensure employees understand the need to communicate information to clients related to the confidentiality of information and that employees without a professional license explain that the confidentiality of their communications only attaches to the recipient and may not be legally recognized.
• Ensure that employees understand when communication with clients is confidential and when they are required to report under recipient policy (i.e., a confidential employee who adjuncts part-time and receives a disclosure from a student in their class would need to follow the requirements for Employees with Administrative Leadership, Teaching, or Advising Roles).

Although nuanced, it is important for Title IX practitioners to understand the differences between these terms and their application to the Title IX process. The most effective way for Title IX practitioners to ensure their understanding of the complex intricacies of Title IX is to become a member ATIXA, a professional association for school and college Title IX coordinators, investigators, and administrators who are interested in serving their districts and campuses more effectively. More information about ATIXA may be accessed at: https://www.atixa.org/about/.

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^[1] Recipients should ensure they understand any overlapping reporting requirements that may apply based on their jurisdiction. For example, Texas Education Code Chapter 51, Subchapter E-2, Section 51.252 requires employees of postsecondary educational institutions designated by the institution as a person with whom students may speak confidentially concerning sexual harassment, sexual assault, dating violence, or stalking or who receives information regarding such an incident under circumstances that render the employee’s communications confidential or privileged under other law shall, in making a report to the Title IX coordinator, state only the type of incident reported and not include any information that would violate a student’s expectation of privacy. Accessible at: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.51.htm#51.255.

^[2] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41567 (July 12, 2022). Accessible at: https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal.

^[3] Under the current regulations, the Officials with Authority construct requires that any postsecondary official who has the authority to institute corrective measures accept notice or complaints of sex discrimination on behalf of the recipient. Any such report made to any other employee of the recipient is not considered actual notice under the current regulations.

Read more ATIXA Tip of the Week blogs here.