Filed Under: Definitions
Can Program Legal provide any guidance for the distinction between “unwelcome” and “subjectively offensive” as it relates to the analysis for a Hostile Environment? It seems like the preamble combines these elements, functionally, into the same analysis…is that correct?
The definition of hostile environment sex-based harassment in § 106.2 requires, among other things, that the conduct be unwelcome as well as subjectively offensive. The 2024 Title IX regulations do not dictate how the analyses of whether the conduct was unwelcome and whether the conduct was subjectively offensive intersect, but they could involve consideration of similar facts. Although determining whether conduct was unwelcome and whether the conduct was subjectively offensive may involve consideration of the same facts, the 2024 Title IX regulations do not state that simply because the conduct was subjectively offensive it was necessarily unwelcome and both requirements must be established. The preamble to the 2024 Title IX regulations explains that “subjective offensiveness must be supported by evidence.” 89 FR 33510. The preamble further notes that “whether the complainant subjectively found the conduct offensive or abusive is commonly understood as an important element of hostile environment harassment.” 89 FR 33510.
In addition, the Department maintains the position articulated in the preamble to the July 2022 NPRM:
- “Conduct would be unwelcome if a person did not request it or invite it and regarded the conduct as undesirable or offensive. Acquiescence to the conduct or the failure to complain, resist, or object when the conduct was taking place would not mean that the conduct was welcome, and the fact that a person may have accepted the conduct does not mean that they welcomed it . . . In addition, simply because a person willingly participated in the conduct on one occasion does not prevent that same conduct from being unwelcome on a subsequent occasion.” 87 FR 41411-12.