[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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