BERWYN, PA — Screen out the noise. Ignore the fact that the federal courts can’t agree or provide a cogent explanation. Sidestep the efforts by OCR to change the very definition of sexual harassment within the Title IX regulations. Just focus on the statute. In a time of change and lack of clarity, first principles are our best guides.
It’s About… Discrimination
Title IX is a statute prohibiting only one thing – discrimination on the basis of sex1 in federally-funded educational programs.
It doesn’t prohibit sexual harassment, or sexual violence, or athletics inequity, or stalking, or intimate partner violence, or even bullying, unless those actions deny access to or participation in a federally-funded educational program on the basis of sex, at which point they become conduct prohibited by the statute.
Considered conversely, Title IX guarantees access to federally-funded educational programs on the basis of sex. If a person within a federally-funded educational program is not experiencing a limitation in participation or denial of access, benefits, or opportunities on the basis of sex, Title IX does not apply. Your conduct policies might apply. Your sexual misconduct policy might apply. But Title IX does not.
Under Title IX, three things can result in a discriminatory effect on the basis of sex: (1) disparate treatment; (2) a disparate impact; and (3) a hostile environment.2 That’s it. Nothing else can.
The underlying principles derived from the statute itself provide us with the necessary tools to assess whether Title IX governs. We’re looking for sufficiently egregious conduct that causes a reasonable person to experience a discriminatory effect on the basis of sex. We know what that is, and it’s easier than trying to decipher a punctuation conundrum. This position statement is your roadmap to identifying it.
Source: ATIXA Central Offices, 1109 Lancaster Avenue, Berwyn PA 19312
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