Employee or Faculty Grievance Process (Response 12/21/2020)

Filed Under: Employee
Question:

Do the new Title IX regulations prohibit institutions of higher education from permitting employees and faculty members to grieve sanctions issued in connection with Title IX matters, through an employee or faculty grievance process, where complainants are not required to be involved and the Title IX procedures do not allow parties to appeal sanctions?

For context, many institutions of higher education have employee grievance processes for challenging disciplinary actions through a multi-step process, that may ultimately lead to the matter being addressed in an external administrative hearing office; faculty discipline is often addressed through a process set forth in faculty by-laws.  In both of those scenarios, any complaining party that may have prompted action being taken against the respondent employee or faculty member, would not be involved in the grievance or bylaw process.

Answer:

In the Preamble to the Final Title IX Rule, the Department noted that: “If a recipient chooses to accept Federal financial assistance and thus become subject to these final regulations, then the recipient may negotiate a collective bargaining agreement that requires a pre- termination hearing consistent with the requirements for a hearing under § 106.45(b)(6).”

Nothing precludes a recipient and a union from renegotiating agreements to achieve the most suitable process that complies with these final regulations.

For instance, after a respondent has been found responsible for sexual harassment, and after any appeal has been resolved, a recipient may impose a disciplinary sanction consistent with § 106.45(b)(1)(i). Notably, the disciplinary sanction does not need to be imposed by the same decision-maker who made a decision regarding responsibility, so long as the ultimate written determination meets the requirements of the new regulations. Separately, recipients are also free to generate their own procedures for employee conduct that is not covered by Title IX.

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