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 c
Thank you for your email to the U.S. Department of Education’s Office for Civil Rights (OCR) regarding how a school should evaluate pervasiveness. Please note that in all cases, OCR refrains from offering opinions about specific facts without first conducting an investigation.
OCR enforces Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681-1689, and its implementing regulations at 34 C.F.R. Part 106, which prohibit sex discrimination in education programs and activities operated by recipients of Federal financial assistance. The Department’s Title IX regulations were amended in 2020 (2020 Notice of Final Rule; 2020 Title IX regulations) and again in 2024 (2024 Notice of Final Rule; 2024 Title IX regulations). The 2024 Title IX regulations went into effect on August 1, 2024, and apply to allegations of sex discrimination that occurred on or after that date.
As of November 25, 2024, pursuant to Federal court orders, the Department is currently enjoined from enforcing the 2024 Title IX regulations in the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming; the Department is also currently enjoined from enforcing the 2024 Title IX regulations at the schools on the list located at https://www.ed.gov/sites/ed/files/about/offices/list/ocr/docs/list-of-schools-enjoined-from-2024-t9-rule. Per court order, this list of schools may be supplemented in the future. Pending further court orders, the Department’s 2020 Title IX regulations remain in effect in those states and schools. Any updates on the status of the 2024 Title IX regulations will be posted at https://www.ed.gov/laws-and-policy/civil-rights-laws/title-ix-and-sex-discrimination/sex-discrimination-overview-of. In this response, we provide general information below about an institution’s obligations under the 2020 and 2024 Title IX regulations.
The 2020 Title IX regulations define “sexual harassment” in part as “unwelcome conduct [on the basis of sex] determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” 34 C.F.R. 106.30(a) (2020). In the 2020 Title IX regulations the Department explained that while it could not make definitive statements as to whether a specific scenario would satisfy the definition’s pervasiveness requirement due to the necessarily fact-specific nature of the analysis, “[d]isseminating ‘revenge porn,’ or conspiring to sexually harass people (such as fraternity members telling new pledges to ‘score’), or other unwelcome conduct that harms and humiliates a person on the basis of sex may meet the elements of the [definition] including pervasiveness, particularly where the unwelcome sex-based conduct involves widespread dissemination of offensive material or multiple people agreeing to potentially victimize others and taking steps in furtherance of the agreement.” Preamble at 30,166. The Department also stated that the 2020 Title IX regulations impose a “reasonable person standard” on whether the unwelcome conduct was “so severe, pervasive, and objectively offensive that a person is effectively denied equal access to education.” Preamble at 30,143.
The 2024 Title IX regulations define “sex-based harassment” in part as “unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment)” and state that “[w]hether a hostile environment has been created is a fact-specific inquiry that includes consideration of . . . the type, frequency, and duration of the conduct.” 34 C.F.R. § 106.2 (2024). In the 2024 Title IX regulations, the Department explained that an evaluation of whether specific conduct would meet the definition of hostile environment sex-based harassment must be based on the totality of the circumstances. Preamble at 33,509. The Department further explained that “sex-based conduct meets the ‘severe or pervasive’ standard of sex-based harassment if it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” Preamble at 33,508. The Department acknowledged that “type, frequency, and duration may overlap with the meanings of ‘severe’ and ‘pervasive’ in some respects, but reference to type, frequency, and duration will help guide decisionmakers in their evaluation of the severity and pervasiveness of the conduct.” Preamble at 33,513.
The Department clarified that “one stray remark does not satisfy the level of pervasiveness to which the regulations refer” noting that “sex-based conduct that occurs on multiple occasions and is so persistent that, for example, it limits another student’s ability to complete assigned coursework at the student’s typical level of performance would potentially constitute the type of pervasive sex-based conduct the final regulations are intended to reach.” Preamble at 33,508-09. The Department further explained that “harassment can be pervasive if it is widespread, openly practiced, or well-known to students and staff (such as sex-based harassment occurring in the hallways, graffiti in public areas, or harassment occurring during recess under a teacher’s supervision)” and that “pervasiveness can also be found if there is a pattern or practice of harassment, as well as if the harassment is sustained and nontrivial.” Preamble at 33,509.
Please note that correspondence issued by OCR in response to an inquiry from the public, including this message, does not constitute a formal statement of OCR policy and should not be construed as creating or articulating new policy. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public via OCR’s Policy Guidance Portal.
We hope you find this information helpful.