Sex-Based Harassment

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) is responsible for enforcing protections against sex discrimination (including pregnancy, sexual orientation, and gender identity) under Title IX of the Education Amendments of 1972 (Title IX) and Section 1557 of the Affordable Care Act (Section 1557).

The Title IX regulation generally provides that “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination …” in education programs and activities. 45 C.F.R. § 86.31

The Section 1557 regulation extends the same protections to participants in health programs and activities, providing that covered entities may not discriminate on the basis of sex, among other grounds, in their health programs and activities.

It is well accepted among federal courts and agencies that discrimination on the basis of sex includes sex-based harassment when it is sufficiently serious to deny or limit an individual’s ability to participate in or benefit from the program at issue. Click here to read about sex-based harassment in the Department of Justice’s Title IX Manual.

What is sex-based harassment?

Sex-based harassment includes sexual harassment (including sexual violence) and gender-based harassment. The definitions below have been developed by the Office for Civil Rights at the U.S. Department of Education. Because of the overlap between Section 1557 and Title IX and to ensure consistency for entities covered by both statutes, these definitions will be used for both statutes to describe prohibited behavior.

Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sex-based harassment can happen to people and be perpetrated by people of any sex.

Sexual Violence
Sexual violence is a form of sexual harassment. Sexual violence refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent (e.g., due to the victim's age or use of drugs or alcohol, or because an intellectual or other disability prevents the victim from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.

Gender-Based Harassment
Gender-based harassment is unwelcome conduct based on an individual's actual or perceived sex. It includes slurs, taunts, stereotypes, or name-calling as well as gender-motivated physical threats, attacks, or other hateful conduct.

An individual can experience harassment of one type or may experience combinations of discriminatory conduct.

What are some examples of sexual harassment?

Physician at a health center in a university engages in inappropriate touching of female students and others who receive examinations.
Professor sexually assaults male students during research internship in an isolated setting, requiring them to share a bedroom.
Researcher repeatedly makes lewd and sexually demeaning comments in the laboratory.

What are some examples of gender-based harassment?

Male graduate students sabotage the results of female graduate students’ research.
Hospital denies student an internship in its training and outreach program after an initial interview. Supervisor of internships remarked to colleagues that the student did not look sufficiently feminine for the role.

What are some examples of both sexual harassment and gender-based harassment?

Male Primary Investigator in research lab demeans and calls out the mistakes of female employees of the lab, but not of male employees who make similar errors. Women are not promoted into supervisory positions under the Primary Researcher. He also makes sexually inappropriate remarks about female researchers at a laboratory that was being considered for collaboration.

When is sex-based harassment a violation of Title IX and Section 1557?

Title IX requires recipients to respond to sex-based harassment that is sufficiently serious to deny or limit the ability of students or employees to participate in or benefit from the covered entities’ educational programs and activities (e.g., creates a hostile environment). Section 1557 similarly requires covered entities to respond to sex-based harassment in its health programs and activities, which may include harassment of non-students and non-employees in health programs operated by a university or college.

As the Department of Education has noted, when a recipient “knows or reasonably should know of possible sex-based harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that the harassment created a hostile environment, the [recipient] must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.” To read the Department of Education Frequently Asked Questions, click here.

How does OCR resolve complaints about sexual harassment?

OCR investigates and resolves complaints of sexual harassment in the education and health programs of recipients of grants or other federal financial assistance from HHS. Information about filing a civil rights complaint can be found here. OCR also has the authority to initiate compliance reviews of covered entities in the absence of a complaint when credible information exists that a covered entity is operating in violation of Title IX or Section 1557.

OCR will analyze information from the complaint to ensure that it has jurisdiction. If OCR does not have jurisdiction and jurisdiction lies with another agency, OCR will forward the complaint to that agency. If the complainant is an employee of a covered entity and is alleging sex discrimination by another employee or supervisor, OCR generally will forward the complaint to the U.S. Equal Employment Opportunity Commission for investigation. OCR generally will retain an employment complaint for investigation if the allegations include either (1) a pattern or practice of sexual harassment in the employment context, or (2) discrimination in employment and other practices of the covered entity.

If a complainant has questions about whether OCR is the right agency with which to file a complaint, he or she should proceed through OCR’s complaint process, which will ask questions to determine jurisdiction. In addition, after the complaint is filed, the complainant will receive a letter informing them of whether OCR has jurisdiction or if the complaint is being forwarded to another federal agency.

It is unlawful for a covered entity to retaliate against a person for filing a complaint about sexual harassment or any other sex-based discrimination. If any retaliation is alleged, OCR will investigate that issue in addition to the original allegations in the complaint.

In addition, during the complaint process, OCR will seek the complainant’s consent to reveal his/her identity or identifying information, if necessary, to investigate the complaint. Consent is voluntary, and it is not always needed to investigate a complaint. Failure to provide consent, however, may make it difficult to investigate some aspects of the complaint.

When OCR identifies a violation or concern, it will work with the covered entity to achieve compliance with the law. Depending on the scope of the changes required, complaints can be resolved through voluntary compliance letters or agreements requiring a change in policies, monitoring, notification, training, and how incidents are addressed, including incidents from the complaint. If voluntary compliance cannot be achieved, OCR can issue a formal findings letter and refer the case to the Department of Justice or begin administrative proceedings to revoke federal funds.

What are some examples of OCR’s investigation into sex-based discrimination and enforcement actions?

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Where can I find more information on sexual harassment?

Resources on Title IX and sexual harassment: