June 12, 2020
Note: This document focuses on a summary analysis of Section 106.6(f) of the 2020 Final Title IX Regulations,1 specifically on the interplay with Title VII. For a full overview of the changes from the Proposed Regulations, see Title IX Text for Text Proposed to Final Comparison and Title IX Summary Proposed to Final Comparison, available at system.suny.edu/sci/tix2020
As noted by the Department in both the Notice of Proposed Rulemaking (“NPRM”) and the preamble to the Final Rule, an employee of an educational institution may have rights not only under Title IX, but also Title VII and state law for sex-based discrimination.
While the Department states that the grievance process outlined in §106.45 does not contradict or expand Title VII, these rights are not fully coextensive. As in the NPRM, section 106.6(f) of the Final Regulations attempts to address this possible conflict by noting that nothing in the Final Regulations shall be read as a "derogation" of an employee’s rights under Title VII or any regulations promulgated thereunder. However, the Final Rule does not clearly address how an employer should proceed when such a conflict arises between the two laws as interpreted, as well as between the Final Rule and any other protections under federal or state law or regulation, or collective bargaining agreement.
For a full discussion of the application of the Final Regulation to employees, please see the Joint Guidance memo on Directed Question 3: Application to Employees.
The Joint Guidance on the 2020 Title IX Regulations is prepared as a service by in-house and firm attorneys, but does not represent legal advice. The Joint Guidance is compliance advice and no attorney/client relationship is formed with any contributor or their organization. Legal advice for specific situations may depend upon state law and federal and state case law and readers are advised to seek the advice of counsel. The Joint Guidance is available absolutely free pursuant to a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license (meaning that all educational institutions are free to use, customize, adapt, and re-share the content, with proper attribution, for non-commercial purposes, but the content may not be sold).
1 The effective date for these regulations will be August 14, 2020 and will apply prospectively. The Department has stated it will provide technical assistance during the transition period and after the effective date.