By Sheilah Vance, Esq., ATIXA Advisory Board Member, TNG Affiliated Consultant
Higher education administrators need to be mindful that the U.S. Department of Education (ED) and the U.S. Department of Housing and Urban Development (HUD) define sexual harassment differently. HUD uses the more expansive, Title VII-based “severe or pervasive” standard in its definition of sexual harassment. The HUD standard, applicable to higher education through the Fair Housing Act (FHA), applies to campus housing for students, faculty, or staff at institutions receiving federal funding. By contrast, ED uses the narrower standard of “severe and pervasive and objectively offensive” as the basis for its definition of sexual harassment under Section 106.30 of the Title IX regulations, which applies broadly to education programs or activities.
Every U. S. Circuit Court of Appeals (the 8th, 7th, 9th, and 10th) that has considered the question has affirmed that a sexual harassment claim is actionable under the FHA. Most recently, the Eleventh Circuit agreed and held that “sexual harassment can be a form of sex discrimination prohibited by the FHA, provided the plaintiff can demonstrate that she would not have been harassed but for her sex.”[1] The court stated, “When interpreting the FHA, we—like our sister circuits—look to cases interpreting Title VII, which uses language virtually identical to the FHA’s.” It went on to state, “Turning to cases interpreting Title VII confirms our conclusion that the FHA prohibits sexual harassment.”
How then should institutions reconcile the application of two different mandated definitions of sexual harassment? Mirror the approach institutions take to reconciling the differences between Title VII and Title IX: by making sure that the institution has policies, processes, and training to address both definitions, by making sure the Title VII policy definition can be applied to students, and by understanding the process of charging to ensure that charges are made correctly, using the correct legal standards.
Under the FHA, HUD defines hostile environment harassment as “unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction”[2] [emphasis added]. ED defines sexual harassment as “…(ii) Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity…”[3] [emphasis added]. Like the definition of sexual harassment under Title VII, the HUD definition of “severe or pervasive” is more expansive and encompassing than the definition of “severe and pervasive” under Title IX. So, in the example of a residential student who calls another female residential student the “C” word, one time, we have sexually harassing conduct that is severe and objectively offensive, but not pervasive. This act would violate the FHA standard, but not the Title IX standard.
Thus, a resident of institutional housing, or a person whose complaint stems from an action involving institutional housing, may successfully maintain an action against an educational institution under the HUD FHA standard of “severe or pervasive” when that person could not maintain an action under ED’s Title IX “severe and pervasive” standard. Additionally, as the ED states that Title IX does not diminish a party’s rights under Title VII (85 Fed. Reg. 30205), it can likewise be logically assumed that Title IX does not diminish a party’s rights under the FHA.
Key Take-Aways
- Residential institutions of higher education should make certain that housing employees and employees managing housing-related sexual harassment complaints understand how the HUD definition of sexual harassment may apply.
- Complaints that may meet the HUD definition of “severe or pervasive” but not the Title IX definition of “severe and pervasive” should be addressed using a process that meets the institution’s responsibilities under the HUD definition. Institutions must assure that their training highlights and accounts for these differences.
- Policies applicable to residential students/employees should include both the Title VII and Title IX definitions of sexual harassment.
- Most importantly, when conduct giving rise to a complaint involves residential students and occurred in a residence hall, the institution must charge with both the Title IX definition of sexual harassment and the FHA definition, and make separate findings, accordingly.
- Unlike the Title IX regulations, which treat analysis of sexual assault and sexual harassment distinctly, the FHA approach would consider stalking, sexual assault, dating violence, and domestic violence as forms of sexual harassment, and should be charged accordingly.
- Part of the challenge of this analysis is that the Title IX definition of sexual harassment is strongly (and appropriately) protective of First Amendment rights. The FHA standard, as broader, may encompass comments that are protected speech, which could create a conundrum for public institutions. As public institutions consider the implications of this analysis, it will be wise to confer with legal counsel on the First Amendment implications.
[1] Fox v. Gaines, No. 20-12620 (11th Cir. 2021).
[2] HUD Regulations 2016, Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, 24 CFR 100, 81 FR 63054 (9/14/16).
[3] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 34 CFR Part 106, 85 FR 30026 (5/19/2020).