Department of Education Guidelines Regarding Sexual Harassment

Internal Talking Points Regarding Sexual Harassment Guidance Published by the U.S. Department of Education's Office for Civil Rights July, 1998 Background The Office for Civil Rights (OCR) of the U.S. Department of Education enforces federal civil rights laws, including Title IX, which prohibits discrimination on the basis of sex. On March 13, 1997, OCR published in the Federal Register final policy guidance ["policy"] regarding sexual harassment of students, the first comprehensive policy statement on the subject of sexual harassment in the agency's history. The policy-reflecting existing agency practices and building upon prior policy and case-related statements-was published after considerable consultation with groups representing students, schools, teachers and school administrators, as well as with civil rights groups. Policy specifically addressing gay and lesbian students Discrimination on the basis of sexual orientation is not prohibited by Title IX. However, OCR's policy recognized that Title IX covers sexual harassment directed at gay or lesbian students. As the policy recognizes, this kind of harassment can be manifested in several ways, as long as the conduct in question is conduct "of a sexual nature." The policy recognized: "[I]f a male student or a group of male students target a lesbian student for physical sexual advances" because she is a lesbian, and this harassment is sufficiently severe, persistent or pervasive to affect her educational environment, then Title IX would apply. If a male student subjects another male student to inappropriate sexual advances or other conduct of a sexual nature, and this harassment is sufficiently severe, persistent or pervasive to affect his educational environment, then Title IX protects that student. If students heckle another student with comments based on the student's sexual orientation (e.g., "gay students are not welcome at this table in the cafeteria"), such conduct is not sexual harassment under Title IX. The policy also recognized that homosexual sexual harassment is prohibited by Title IX, e.g., when a homosexual teacher or student seeks sexual favors from a student of the same sex. The policy cited the Nabozny V. Podlesny, 92 F.3d 446 (7th Cir. 1996) with approval in the context of a discussion regarding recourse beyond Title IX to address the problem of discrimination against gay and lesbian students. OCR also refers allegations of "hate crimes" related to sexual orientation (beyond the purview of Title IX) to the Department of Justice.