Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Sep 25 2023
By Canaan Suitt, J.D. | Last updated on September 25, 2023
Featuring practical insights from contributing attorney Nina T. Pirrotti
Understanding your options for reporting sexual harassment
In a survey conducted by the Association of American Universities at 21 colleges and universities nationwide, nearly 42 percent of all students at the undergraduate and graduate levels reported experiencing at least one sexually harassing behavior since their academic enrollment. Approximately 19 percent of students reported behavior that either:
- Interfered with their academic or professional performance;
- Limited their ability to participate in an educational program; or
- Created a hostile social, work, or school environment.
Sexual harassment continues to be prevalent on college and university campuses across the country.
What is Sexual Harassment?
Sexual harassment is a form of sex discrimination under state and federal law. It is any unwelcome conduct of a sexual nature. Forms of sexual harassment include but are not limited to:
- Unwanted contact of a sexual nature, including touching a person’s body or clothing
- Unwanted sexual advances or requests for sexual favors
- Sexualized comments about your or someone else’s body or appearance
- Disparaging comments, jokes, or slurs about your gender identity or sexual orientation
- Being sent unwanted messages, images, or videos of a sexual nature or sexualized gestures
- Sexual assault or forcing you into sexual acts
In the education context, sexual harassment negatively impacts students’ sense of safety and equal access to school and education programs, including:
- Being on campus;
- Attending classes;
- Joining school-sponsored activities or travel;
- Participating in athletics or other student organizations.
Individuals should be looking for very strong, very clear, and very available guidance on filing a Title IX complaint about sexual harassment, sexual assault, or any of the other provisions of Title IX. The more support individuals receive, the more guidance they receive, and the more resources they receive as they go through this process—and the fairer the process appears to be regarding outcomes—the less likely it is that the school has violated Title IX. — Nina T. Pirrotti
What is Title IX?
Title IX of the Education Amendments of 1972 makes sexual harassment illegal at any school or university that receives any federal funding for educational programs. That includes:
- Public and private elementary schools
- Public and private secondary schools or high schools
- Public and private colleges and universities
It requires educational institutions and school administrators to:
- Create clear sexual harassment policies and reporting procedures and make them available to every student, faculty, and school employee;
- Make the university or college’s Title IX Coordinator’s contact information publicly available;
- Investigate the reported incident of sexual harassment, take immediate steps to stop the harassment with appropriate disciplinary actions, prevent future harassment, and address its consequences.
It’s important to note that Title IX is a confidential and internal complaint process. You can report sexual assault or harassment to law enforcement, but you are not required to in order to pursue a Title IX complaint.
What is a Title IX Coordinator?
The Title IX Coordinator is responsible for ensuring that your educational institution complies with the requirements of Title IX. They perform a wide range of tasks, including:
- Coordinating the university’s response to allegations of sexual harassment;
- Leading or assigning investigations into reported incidents of sexual harassment;
- Conducting training and education on Title IX issues;
- Tracking changes in Title IX laws and regulations.
Your school’s Title IX Coordinator is the person you can contact for support and information if you have experienced sexual harassment from a professor, coach, school personnel, fellow student, or co-worker in a university setting.
Note also that you can report incidents of sexual harassment or assault even if you aren’t the one who personally experienced it.
What is the Process of Title IX Reporting?
The first step is to get the contact information for your institution’s Title IX Coordinator. This info should be easily findable online.
Depending on your school, the Title IX Coordinator’s office may be housed in the Office of Sexual Misconduct, Office of Ethics and Compliance, or a similarly named department on campus. You can generally contact the Title IX Office in person, by phone, or by email. Your school’s website may also offer an online reporting form.
After you make an initial report with the office of your Title IX Coordinator, a school official trained to handle Title IX complaints will contact you and arrange an interview to gather information.
At the interview, you can share all the information you have about the incident. It’s okay if you don’t know everything or have all the information. The investigator should inform you of the steps of the investigation process and your rights.
Following the initial interview, the investigator assigned to your case may follow up with further questions or clarifications. Once the evidence and witness statements have been gathered, the investigator should make a determination. If they conclude that a violation of the school’s Title IX policies did occur, they may recommend sanctions or disciplinary actions against the perpetrator.
Generally, both parties to a Title IX investigation have the right to appeal an unfavorable decision to a higher level in the school administration.
What if the University Fails to Address the Problem?
If the school fails to take your allegations of sexual harassment seriously through inaction or prolonged delay, you have options.
“This issue is very near and dear to my heart,” says Nina T. Pirrotti, a New Haven, Connecticut civil rights and discrimination law attorney. “Individuals who come to me may have been sexually harassed, assaulted, or raped at university, and the university has responded with deliberate indifference to what they have suffered.”
“Deliberate indifference” is the legal standard in Title IX lawsuits. “It means that the process the university forced the student to go through to hold the perpetrator accountable was so flawed that the school should be found deliberately indifferent in how they handled it.”
When this happens, you can:
- Pursue a grievance procedure within your institution to resolve a Title IX complaint of sexual harassment;
- File a formal complaint with the U.S. Department of Education’s Office for Civil Rights (OCR), regardless of whether or not you pursue an internal grievance process;
- Take legal action against the institution through a civil lawsuit.
Limits on Damages for Title IX Litigants
If you choose legal action, it’s important to be aware of changes stemming from a recent Supreme Court decision. “A Supreme Court decision that came down before the Dobbs decision in 2022—Cummings v. Premier Rehab Keller, P.L.L.C.—has really, so far, changed the landscape of Title IX litigation in an unfortunate way,” says Pirrotti.
“Cummings was an Affordable Care Act and Rehabilitation Act case—not Title IX. But it basically held that any statute enacted by Congress under the Spending Clause of the Constitution can only come with economic damages since the Spending Clause sounded in contracts.”
What does this mean practically?
“What some courts around the country have held so far is that Cummings precludes Title IX litigants from receiving emotional distress damages,” explains Pirrotti. “The argument is that Title IX was also founded under the Spending Clause and therefore should go the way of the statutes at issue in Cummings: economic damages only.”
How does this impact Title IX litigants?
“As you can imagine, for most Title IX survivors who come to me, the only damages, or the most profound damages they’ve suffered, have been in the emotional distress realm,” says Pirrotti. Thus, courts have eliminated litigants’ primary damages by eliminating emotional distress compensation.
Pirrotti emphasizes that just because the case law has so far precluded recovery for emotional distress damages in Title IX lawsuits, “it doesn’t mean that women shouldn’t pursue their claims under Title IX. They absolutely should.”
Furthermore, “Individuals should be looking for very strong, very clear, and very available guidance on filing a Title IX complaint about sexual harassment, sexual assault, or any of the other provisions of Title IX. The more support individuals receive, the more guidance they receive, and the more resources they receive as they go through this process—and the fairer the process appears to be regarding outcomes—the less likely it is that the school has violated Title IX.”
Pirrotti adds that given the holding in Cummings and subsequent case law, “Title IX law is in jeopardy. It needs to be at the forefront of everyone’s mind, especially Congress’s collective mind, to remedy or clarify the holding in Cummings through legislation.”
Find an Attorney with Experience in Title IX and Sexual Harassment Claims
“Often, the best time for someone to consult a lawyer who does Title IX is at the very beginning when they’ve suffered the harm,” says Pirrotti. By consulting early on, “the lawyer can shepherd them through the process so they can get every available due process and remedy that they’re entitled to.”
To find an attorney with experience in Title IX and pursuing claims of discrimination on the basis of sex, search the Super Lawyers directory of discrimination law attorneys.
For additional information on this legal area, see our overviews of sexual harassment and discrimination law.