Title: Title IX Take Responsibility Act of 2021
Policy area: Civil Rights and Liberties, Minority Issues

Summary:
Title IX Take Responsibility Act of 2021
This bill establishes statutory standards of liability for sexual harassment and a private right of action under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally funded education programs or activities.
Currently, Title IX does not expressly provide for a private right of action for violations, prohibit sexual harassment, or establish standards of liability with respect to such conduct. The Supreme Court has interpreted the statute to cover sexual harassment and has determined that it provides an implied private right of action; the Court has also delineated standards of liability that generally require actual knowledge on the part of educational institutions with respect to such conduct.
The bill specifically sets out standards of liability for sexual harassment with respect to covered entities under Title IX. Among other provisions, the bill specifies that a covered entity is liable for sexual harassment committed by an employee against a student that is enabled by the employee's authority and results in a hostile environment, regardless of whether the entity knew or should have known about such conduct.
The bill also allows any person aggrieved by the failure of a covered entity to comply with Title IX to bring a civil action for damages.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5396 Introduced in House (IH)]

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117th CONGRESS
  1st Session
                                H. R. 5396

  To amend title IX of the Education Amendments of 1972 to establish 
  standards of liability for harassment on the basis of sex, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 28, 2021

  Mrs. Dingell (for herself and Mrs. Hayes) introduced the following 
    bill; which was referred to the Committee on Education and Labor

_______________________________________________________________________

                                 A BILL


 
  To amend title IX of the Education Amendments of 1972 to establish 
  standards of liability for harassment on the basis of sex, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Title IX Take Responsibility Act of 
2021''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) As the Supreme Court has held in Franklin v. Gwinnett 
        County Public Schools, 503 U.S. 60, 75 (1992), and Davis v. 
        Monroe County Board of Education, 526 U.S. 629, 633 (1999), 
        covered entities are liable for harassment on the basis of sex 
        under their education programs and activities under title IX of 
        the Education Amendments of 1972 (20 U.S.C. 12681 et seq.) 
        (referred to in this Act as ``title IX'').
            (2) As courts have properly recognized, experiencing the 
        effects of sexual harassment under an education program or 
        activity, whether perpetrated by employees or agents of the 
        program or activity, by peers of the victim, or by others, can 
        be a form of unlawful and intentional discrimination that 
        inflicts substantial harm on beneficiaries of the program or 
        activity and violates the obligation of a covered entity to 
        maintain a nondiscriminatory environment.
            (3) Title IX protects persons, of any gender, from 
        discrimination on the basis of sex in education programs and 
        activities that receive Federal funding. Supreme Court opinions 
        have established that under title IX, schools are responsible 
        for addressing sexual harassment, regardless of the location of 
        the harassment, when it impacts a person's access to an 
        educational program or activity.
            (4) Perpetrators of sexual harassment and violence at 
        school are not limited to students. Incidents have also 
        involved faculty, administrators, coaches, and other staff 
        members.
            (5) A school culture that tolerates inappropriate verbal 
        and physical contact and that intentionally or unintentionally 
        discourages reporting these behaviors undermines the emotional, 
        intellectual, and professional growth of millions of young 
        people.
            (6) Sexual harassment of students, especially among women 
        and girls, students of color, disabled students, and LGBTQ 
        students, is widely prevalent in K-12 and higher education, for 
        example:
                    (A) One in 5 girls ages 14 through 18 have been 
                kissed or touched without their consent, 58 percent of 
                LGBTQ youth ages 13 through 21 are sexually harassed, 
                and children with disabilities are 2.9 times more 
                likely than their peers to be sexually assaulted.
                    (B) Historically marginalized and underrepresented 
                groups are more likely to experience sexual harassment 
                than their peers, with Native American, Black, and 
                Latina girls being more likely than White girls to be 
                forced to have sex when they do not want to do so.
                    (C) In college, 1 in 4 women, 1 in 15 men, and 1 in 
                4 transgender, nonbinary, and gender-nonconforming 
                students are sexually assaulted during their time as 
                undergraduates.
                    (D) One in 3 college women and 1 in 6 college men 
                are survivors of dating violence or domestic violence.
            (7) Few students report harassment to their schools, often 
        because of shame or self-blame, fear of retaliation, fear of 
        being ignored or disciplined, fear of police or immigration 
        officials, or lack of knowledge of services schools can offer 
        to help.
            (8) Failure to meaningfully enforce title IX leads to 
        discrimination by creating a hostile learning environment that 
        impedes educational attainment, damages rights to equal access 
        to education, and undermines learning for all.
            (9) When schools fail to protect survivors, including by 
        offering supportive measures that are designed to preserve and 
        to restore their equal access to education, survivors often 
        suffer in the form of lower academic achievement, lost 
        scholarships, and lost degrees.
            (10) Current title IX regulations issued by the Secretary 
        of Education entitled ``Nondiscrimination on the Basis of Sex 
        in Education Programs or Activities Receiving Federal Financial 
        Assistance'' (85 Fed. Reg. 30026, May 19, 2020) have made it 
        more difficult for student survivors to report harassment and 
        receive help and pose uniquely burdensome procedures for cases 
        of sexual harassment that are not required for any other type 
        of student or staff misconduct, only further sweeping sexual 
        violence under the rug.
            (11) Title IX's language is broad and sweeping, making 
        clear Congress' intent to open the courthouse doors to victims 
        of a wide range of sex discrimination in schools. However, 
        since title IX's passage, courts have created barriers that 
        make it extraordinarily difficult for survivors to obtain 
        redress from schools through private litigation.
            (12) In a 5 to 4 opinion in Gebser v. Lago Vista 
        Independent School District, 524 U.S. 274 (1998), the Supreme 
        Court held that students subjected to sexual harassment may 
        receive a damages remedy under title IX only when school 
        officials have ``actual notice'' of the harassment and are 
        ``deliberately indifferent'', or respond in a clearly 
        unreasonable manner, to it.
            (13) Although they do not affect the relevant standards for 
        individuals to obtain injunctive and equitable relief for 
        harassment on the basis of race, color, sex, national origin, 
        age, or disability under covered programs and activities, 
        Gebser and similar opinions severely limit the availability of 
        remedies for such individuals by imposing new, more stringent 
        standards for recovery of damages under title IX. Yet in many 
        cases, damages are the only remedy that would effectively 
        rectify past harassment.
            (14) These limitations on effective relief thwart Congress' 
        underlying purpose to protect students from harassment, and 
        they create prohibitively high standards for title IX sexual 
        harassment lawsuits that are more onerous than those applicable 
        to workplace sexual harassment lawsuits under title VII of the 
        Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). As a 
        result, schools are required to do less to address harassment 
        against their students than to address the same harassment of 
        their employees, meaning that students, who are children and 
        young adults, must suffer worse harassment than adult employees 
        before they are entitled to a remedy in court.
            (15) Some lower courts have added additional onerous 
        barriers under which a school is only liable for its failure to 
        address known sexual harassment if the victim later experiences 
        further actionable sexual harassment.
            (16) A Federal court of appeals opinion in Kollaritsch v. 
        Michigan State University Board of Trustees, 944 F.3d 613, 621-
        24 (6th Cir. 2019), went so far as to foreclose money damages 
        if a victim of sexual harassment does not experience further 
        actionable harassment as a result of the recipient's deficient 
        response to a complaint, even if the recipient's conduct causes 
        educational injuries under title IX.
            (17) Gebser and subsequent opinions create an incentive for 
        covered entities to insulate themselves from knowledge of 
        harassment on the basis of sex rather than adopting and 
        enforcing practices that will minimize the danger of such 
        harassment. The opinions thus undermine the purpose of 
        prohibitions on discrimination in the civil rights laws to 
        induce covered programs or activities to adopt and enforce 
        practices that will minimize the danger that vulnerable 
        students or other persons will be exposed to such odious 
        behavior.
            (18) Legislative action is necessary and appropriate to 
        reverse Gebser and other court opinions and restore the 
        availability of a full range of remedies for harassment based 
        on sex.
            (19) Restoring the availability of a full range of remedies 
        for harassment will--
                    (A) ensure that students and other persons of 
                federally funded programs and activities have 
                protection from harassment on the basis of sex;
                    (B) encourage covered entities to adopt and enforce 
                meaningful policies and procedures to prevent and 
                remedy harassment;
                    (C) deter incidents of harassment; and
                    (D) provide appropriate remedies for 
                discrimination.

SEC. 3. PROHIBITION OF HARASSMENT.

    (a) Prohibition of Harassment.--Section 901 of the Education 
Amendments of 1972 (20 U.S.C. 1681) is amended by adding at the end the 
following:
    ``(d) Prohibition of Harassment.--
            ``(1) If an agent or an employee of a covered entity 
        engages in harassment, regardless of where the harassment 
        occurs, on the basis of sex, which is enabled or assisted by 
        the authority exercised as an employee or agent of the covered 
        entity, against a person who is participating in or receiving 
        benefits, services, or opportunities from an education program 
        or activity, or who is attempting to do so, and the harassment 
        alters the aggrieved person's ability to do so, including by 
        creating an intimidating, hostile, or offensive environment, 
        the covered entity is liable for sex discrimination.
            ``(2)(A) If a person who is an agent or employee of a 
        covered entity engages in harassment, regardless of where the 
        harassment occurs, on the basis of sex against a person who is 
        participating in or receiving benefits, services, or 
        opportunities from an education program or activity or who is 
        attempting to do so--
                    ``(i) the harassment is not enabled or assisted by 
                the authority exercised as an employee or agent of the 
                covered entity;
                    ``(ii) the harassment alters the aggrieved person's 
                ability to participate in or receive benefits, 
                services, or opportunities from an education program or 
                activity, including by creating an intimidating, 
                hostile, or offensive environment; and
                    ``(iii) the covered entity knew, or in the exercise 
                of reasonable care should have known, of the 
                harassment,
        then the covered entity is liable for sex discrimination unless 
        it can demonstrate that it exercised reasonable care to 
        promptly prevent and correct the effects of any harassment 
        based on sex.
            ``(B) If a person who is not an agent or employee of a 
        covered entity engages in harassment, regardless of where the 
        harassment occurs, on the basis of sex against a person who is 
        participating in or receiving benefits, services, or 
        opportunities from an education program or activity or who is 
        attempting to do so, and the harassment alters the aggrieved 
        person's ability to do so, including by creating an 
        intimidating, hostile, or offensive environment, and the 
        covered entity knew, or in the exercise of reasonable care 
        should have known, of the harassment, then the covered entity 
        is liable for sex discrimination unless it can demonstrate that 
        it exercised reasonable care to promptly prevent and correct 
        the effects of any harassment based on sex.
            ``(C) A covered entity shall exercise reasonable care in 
        response to harassment based on sex if any of the following 
        individuals knew, or in the exercise of reasonable care should 
        have known, about the harassment:
                    ``(i) An agent or employee who has the authority to 
                take action to redress the harassment.
                    ``(ii) An agent or employee who has the duty to 
                report to an administrator harassment or any other 
                misconduct by others.
                    ``(iii) An individual who a harassment victim or 
                reporting party could reasonably believe has this 
                authority or responsibility.
            ``(D) A showing that the covered entity has exercised 
        reasonable care to promptly prevent and correct the effects of 
        any harassment based on sex includes a demonstration by the 
        covered entity that it has--
                    ``(i) established, adequately publicized, and 
                enforced an effective and comprehensive harassment 
                prevention policy and complaint procedure that is 
                likely to provide redress and avoid harm without 
                exposing the person subjected to the harassment to 
                undue risk, effort, or expense;
                    ``(ii) if requested by the aggrieved person or 
                otherwise deemed necessary to protect the aggrieved 
                person or other persons within the program or activity 
                from a significant ongoing threat, undertaken a prompt, 
                thorough, and impartial investigation, unless the 
                allegations are patently frivolous;
                    ``(iii) provided supportive measures that had the 
                purpose and effect of preserving and restoring the 
                aggrieved person's equal access to the education 
                program or activity, regardless of whether the 
                aggrieved person requested an investigation; and
                    ``(iv) after receiving notice, taken other 
                necessary, immediate, and appropriate corrective action 
                designed to stop the harassment that occurred and 
                correct its effects, regardless of whether the 
                aggrieved person experienced subsequent harassment.''.
    (b) Civil Action.--Section 902 of the Education Amendments of 1972 
(20 U.S.C. 1682) is amended--
            (1) by inserting ``(a)'' before ``Each Federal department 
        and agency which is empowered''; and
            (2) by adding at the end the following:
    ``(b) Any person aggrieved by the failure of a covered entity to 
comply with this title, including any regulation promulgated pursuant 
to this title, may bring a civil action in any court of competent 
jurisdiction to enforce such person's rights.''.
    (c) Actions Brought by Aggrieved Persons.--Title IX of the 
Education Amendments of 1972 (20 U.S.C. 1681 et. seq.) is amended by 
inserting after section 902 the following:

``SEC. 902A. ACTIONS BROUGHT BY OR ON BEHALF OF AGGRIEVED PERSONS.

    ``In an action brought against a covered entity by (including on 
behalf of) an aggrieved person who has been subjected to discrimination 
prohibited under this title (including its implementing regulations), 
the plaintiff may recover equitable and legal relief (including 
compensatory and punitive damages), and attorney's fees (including 
expert fees).''.
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