Don’t Let the Title IX Regs Release Date Be a Barrier to Your Barrier Analysis (Part Two): Enhancing Reporting Processes Without Fostering a Perception of Escalating Incidents

by Brett A. Sokolow, Esq., TNG Consulting

As I said last week, if you build it, they will come.

Now that we have examined the benefits of barrier analysis, let’s dive deeply into preparing your community to understand that an increase in reporting is not notably correlated with an increase in incidents.

Individuals who might report sex discrimination or sex-based harassment face choices about what to do, and when they do not know where to go, they do not report. When they review an institution’s procedures for resolution and see impediments, they bottle it up. Their academic or professional success suffers; we do not retain those students and employees. Reducing structural impediments serves the inherent good of increasing retention, safety, employee success, and student success.

Consider these eight factors that will contribute to either an increase in reporting or the number of people deciding to pursue resolution once they report.

1. Conducting barrier analysis and working systemically to reduce impediments.
2. Jurisdictional provisions of the draft 2023 regulations appear to significantly broaden Title IX jurisdiction, meaning that more incidents will fall within your jurisdiction. That may only represent a shift from Process B complaints to Process A, but it may also mean more overall complaints. Broadening jurisdiction could have the most significant implications for off-campus misconduct.
3. The definition of sexual harassment (sex-based harassment in the 2023 draft) has widened considerably. A broader definition will expand the range of conduct subject to school and campus policies. So, more complaints will qualify, and far fewer will be dismissed.
4. The shift in the coming regulations from mandating dismissals to an entirely discretionary process.
5. Removing barriers within the regulations themselves (yes, OCR creates barriers too).
6. The potential to move away from live hearings and cross-examination, creating impediments to reporting.
7. Removing the formal complaint requirement, an incredibly significant structural barrier.
8. Removing the current (and entirely unnecessary) hurdle of first having to file a formal complaint to get the chance to resolve a complaint informally.

Finally, consider the overall effect of new regulations concerning publicity and driving greater awareness of Title IX and its protections. The new regulations are overall more user-friendly for complainants. That will affect reporting in your community after the final rule is released. By engaging in barrier analysis now, your school or campus can amplify the natural increases in reporting that new regulations will catalyze.

The regulations will be overwhelming when they drop. There will be a frenzy to re-write policies and procedures and to train everyone on them. Barrier analysis will be easier to prioritize once you overcome the initial implementation hurdle. But nothing is stopping you now, and barrier analysis is not a one-and-done process. Your community evolves, and as it does, perceptions shift. New barriers arise as previous impediments are ameliorated.

We encourage you to start working on barrier analysis right now. We offer our clients a comprehensive roadmap for studying and increasing reporting. For access to the roadmap and the expertise of TNG to implement it, please get in touch with us at inquiry@tngconsulting.com.