The Department of Justice’s Civil Rights Division, the U.S. Attorney’s Office for the Northern District of California, and San Jose State University (SJSU) settled the government’s Title IX investigation into a decade’s worth of sexual harassment allegations. The June 2020 allegations of “employee-on-student sexual harassment” and retaliation within SJSU’s athletics department prompted the government’s investigation. In September 2021, the government announced its findings against SJSU under Title IX, and its implementing regulations, that SJSU failed to respond to sexual assault allegations even though SJSU had actual notice of these allegations. DOJ found that chief among SJSU’s investigatory failures was its incomplete interview of affected complainants. Additionally, DOJ determined that the school retaliated against two employees, one employee for urging the school to address the sexual harassment, including sexual assault, and the other employee for expressing opposition to retaliation against the reporting employee.

Title IX applies to any school that receives federal financial assistance. Title IX and its regulations require schools to maintain sex discrimination-free environments for students and employees alike. In June 2020, the government issued a Request for Information to SJSU as a part of its Title IX compliance review into the University. The government probed years’ worth of sexual harassment and retaliation within the school’s athletic department. After an extensive investigation that included 35 witness interviews and a review of thousands of pages of University documents, the government found that SJSU had repeatedly violated Title IX. The government began its investigation with allegations made against an athletic trainer in 2009. Several student athletes alleged this trainer sexually harassed student athletes during treatment. SJSU concluded after its five-month investigation that the athletic trainer had not violated any University policy, but the University instructed the athletic trainer to avoid treating female student athletes.

DOJ stated that since 2009, the University had taken “no effective measures to limit the Athletic Trainer’s access to student-athletes.” DOJ states that it uncovered at least five documented instances of SJSU’s awareness that the athletic trainer continued to treat female student-athletes, despite the University’s contrary instruction.

According to DOJ, SJSU also took adverse actions against two employees for highlighting SJSU’s deficiencies. In 2018 and 2019, an employee (Employee A) brought the athletic trainer’s continued treatment of female athletes to the University’s attention, and the school failed to address Employee A’s concern. So, Employee A complained to the NCAA. After Employee A reported the University’s inaction to the NCAA, Employee A received low performance evaluation ratings. Unsurprisingly, DOJ found that Employee A had engaged in protected activity and that the University’s adverse action stemmed from Employee A’s NCAA complaint. This, too, ran afoul of Title IX. DOJ also determined that SJSU fired another employee (Employee B) for failing to meet with Employee A because Employee B did not wish to retaliate against Employee A for reporting sexual harassment, including sexual assault. Finally, DOJ found that the University failed to justify Employee B’s termination.

Besides SJSU paying $1.6M to individuals sexually harassed by the athletic trainer, the parties agreed to several remedial items to address SJSU’s systemic Title IX deficiencies. The agreement requires the University to improve its process for responding to sexual harassment complaints and bolster its Title IX Office by revising the office structure and providing adequate authority, independence, and resources to its coordinator. SJSU must also provide information on the Title IX process, deliver access to training for athletic staff on informed consent and sexual harassment, and conduct training on retaliation under Title IX.

The issues DOJ found with SJSU’s response to sexual assault allegations highlight the Title IX legal minefield and underscores the need for clear policies and procedures that address the expectations of and requirements for compliance with Title IX and its implementing regulations. Schools should actively audit their Title IX Offices to ensure that the Title IX Coordinator, Deputy Coordinators, decision-makers, and investigators are following best practices to adequately address sexual harassment and sexual assault as a form of sex discrimination. So, too, should employers be cautious about employment decisions that may give rise to a retaliation claim. A careful and fulsome review by counsel specializing in Title IX and employment law reduces the risk of running afoul of Title IX and its implementing regulations.

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