By Mikiba W. Morehead, Ed.D., Consultant, TNG Consulting, LLC
Title IX regulations require schools, colleges, and districts to have policies and procedures in place to address claims of sexual harassment. Rumors and gossip are undoubtedly damaging, but do they constitute sexual harassment? Within higher education and K-12 settings, context matters.
Rumors and gossip that are sex-based, sexual in nature, or use disparaging sex-or gender-based language are of particular concern. For example, rumors centered on an individual’s actual or perceived sexual orientation, gender, gender identity, or gender expression may qualify. Additionally, gossip stemming from allegations of sexual harassment (i.e., sexual assault, dating violence, domestic violence, or stalking) may qualify as sexual harassment, especially if it contributes to or exacerbates an ongoing hostile environment.
To determine if rumors and gossip rise to the level of sexual harassment, Title IX Coordinators should look at a few factors, including:
- The content and nature of the rumors or gossip;
- The degree to which the rumors or gossip affect the target’s ability to access the institution’s education program or activity;
- The frequency, intensity, and duration of the rumors or gossip;
- The age, maturity level, and relationship of those involved;
- Whether the rumors or gossip are contributing to other sex-based harassment within the institution’s education program or activity.
The content and nature of the rumors or gossip are essential considerations when evaluating sexual harassment claims. Rumors or gossip that involve sexually explicit language or sexual content may be more likely to constitute sexual harassment. Additionally, rumors or gossip meant to degrade or belittle someone based on their sex or gender may also meet the threshold for sexual harassment. For example, rumors that speculate or disclose someone’s sexual orientation, gender identity, or trans status could escalate to gender-based bullying. Similarly, gossip surrounding an individual’s presumed level of sexual activity, sexual predisposition(s), or the number of sexual partners may be accompanied by other behaviors such as derogatory gender-based slurs, requests for sexual favors, and further harassing comments by peers.
Another significant factor is how the rumors or gossip affect the target’s ability to participate in the school’s educational or employment environment. If the rumors or gossip are so pervasive that they interfere with a student’s experience within the academic environment and access to education, they may constitute sexual harassment under Title IX. Disruptions such as school absences, withdrawal from social activities, or declining academic performance may indicate that rumors or gossip are effectively denying the student access to education programs to activities. Similarly, rumors or gossip can impact an employee’s ability to engage in the work environment, perform their essential job functions, or be considered for work-related opportunities. When sex or gender-based rumors and gossip have the effect of denying an employee access to the work environment, Title IX protections may apply.
The age, maturity level, and relationship of those involved impact the analysis too. For example, rumors or gossip among adult colleagues may have a different impact than those among students. Moreover, rumors among college students may have a different effect than rumors among teenagers or children in the K-12 setting. For example, gossip about a possible sexual assault resulting in a Respondent being called a rapist and harassed on social media—like Yik Yak—has different implications when minors are involved, which can be heightened by an age difference and the tone and seriousness of the accusations in the gossip.
Finally, whether the rumors or gossip contribute to other sex-based harassment within the institution’s education program or activity could also be a factor. Are individuals acting off a rumor they read online and sexually harassing the target in person? Is the original rumor fueling subsequent rumors and creating a larger pattern of harassment within the educational or employment environment that Title IX administrators must investigate? For example, a Complainant uses social media to disclose an alleged sexual assault and either identifies directly or implies the identity of the Respondent. Supporters of the Complainant then begin to post derogatory comments and harass the Respondent online. Frequently, online harassment can lead to harassment in real life, such as name-calling (e.g., rapist, assaulter, predator), ostracization, and warnings to others to watch out for the Respondent. The accusations become so well known that a Respondent’s ability to distance themselves from the rumors or gossip becomes almost impossible. In the most impactful situations, rumors and gossip may lead to a Respondent losing out on opportunities such as being passed over for acceptance into a specific program or activity, removal from a leadership position, recission of job offers, or loss of promotion or salary increase for an employee.
Furthermore, anonymity in online platforms adds complexity to the analysis, given the widespread use of disparaging language, rumors, and gossip. In situations where online harassment plays a significant role, Title IX Coordinators can help maintain a safer educational and work environment by encouraging the development of safety plans, which may include bolstering the target’s privacy settings on social media platforms, blocking problematic individuals from accounts, or limiting their online presence for a short period of time.
Evaluating whether rumors or gossip have risen to the level of sexual harassment is nuanced and often done on a case-by-case basis. While rumors and gossip often tend to be less severe than in-person harassment, in terms of content, the cloak of anonymity provided by online communications can cause people to say things online they would never say in person. Conversely, the nature of online communications can easily render harassment more pervasive, as it spreads rapidly and widely. These are interesting considerations now because current regulations require a finding of both severity and pervasiveness. But this will become far more salient when new Title IX regulations take effect in late 2023 or early 2024, because the proposed sexual harassment definition looks like it will only require severity or pervasiveness, not both. The above criteria can assist Title IX Coordinators in determining whether rumors and gossip within their school environment constitute a violation, both now and in the future.
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