SEXUAL HARASSMENT
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SEXUAL HARASSMENT
Title IX of the Education Amendments of 1972
Title VII of the Civil Rights Act of 1964
PATRICIA A. ADAMS
CHIEF LEGAL COUNSEL
WHY DO WE NEED TO TALK ABOUT THIS
Every employee and every student has a legally protected right
to work and learn in an environment free from sexually harassing
behavior by supervisors, co-workers or any other member of the
school community.
•
You need to know what it looks like.
•
You need to know that it is prohibited by state and federal law and Board
policy and that you can, and will, be fired if it is determined that you
sexually harassed a co-worker or a student.
•
You need to know what to do if you feel that you are a victim of sexual
harassment.
•
You need to know what to do if you observe inappropriate behavior –
particularly if it involves a student.
•
You need to help me keep the District from being sued!!
OVERVIEW
Sexual harassment in schools presents two legal topics:
1.
The sexual harassment of employees
2.
The sexual harassment of students
PART 1
SEXUAL HARASSMENT
OF EMPLOYEES
EMPLOYEE CLAIMS
Title VII of the Civil Rights Act of 1964 establishes the basic law
regarding sexual harassment in the workplace.
Employees may also bring sexual harassment claims under
state law, the 14
th
Amendment, school board policies, and
even negligence theories.
Sexual Harassment as Defined Under
Title VII
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature when:
(1)
Submission to such conduct is made a term or
condition of employment;
(2)
Submission or rejection of such conduct is used as a
basis for employment decisions; or
(3)
Such conduct unreasonably interferes with performance
or creates a hostile work environment.
29 C.F.R 1604.11
Categories of Sexual Harassment
Quid pro quo
– “this for that” – when a supervisor makes
promises or threats in exchange for sex or submission to
sexual behavior.
Hostile environment –
sexually based conduct so severe and
pervasive that it alters the conditions of employment and
creates an abusive environment.
Examples of prohibited conduct
1.
Graphic verbal comments about an individual's body or appearance.
2.
Sexual jokes, notes, stories, drawings, pictures, or gestures.
3.
Sexual slurs, leering, threats, abusive words, derogatory comments, or sexually degrading
descriptions.
4.
Unwelcome sexual flirtations or propositions for sexual activity or unwelcome demands for
sexual favors, including, but not limited to, repeated unwelcome requests for dates.
5.
Spreading sexual rumors.
6.
Touching an individual's body or clothes (including one's own) in a sexual way, including, but
not limited to, grabbing, brushing against, patting, pinching, bumping, rubbing, kissing, and
fondling.
7.
Cornering or blocking normal movements.
8.
Displaying sexually suggestive drawings, pictures, written materials, and objects in the
educational environment.
EMPLOYER LIABILITY
•
An employer will be held strictly liable if it is determined that a supervisor made a
tangible employment decision based on an employee’s refusal of sex.
•
An employer may still be held liable for a supervisor’s sexually harassing behavior,
even if the employee did not suffer a tangible adverse action, unless the employer
can show that:
•
Employer took reasonable steps to prevent and promptly correct the
supervisor’s sexually harassing behavior
•
Employee failed to use preventive or corrective measures to avoid harm.
EMPLOYER LIABILITY
What if an employee claims that a co-worker or vendor created a hostile
work environment?
The employer will be held liable if a supervisor knew, or should
have known, about the harassment and failed to take timely
and effective corrective action reasonably calculated to end
the harassment.
Nontraditional Protections
•
Same sex harassment actionable.
Oncale v. Sundowner
Offshore Srvcs., 523 U.S. 75 (1998)
•
Gender stereotyping actionable.
Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989)
•
Sexual orientation and transgender status actionable.
Bostock v. Clayton County Georgia, 140 S. Ct. 1731 (2020)
Board Policy GAEAA
Title VII Employee Sexual Harassment
•
You will find it on the District website under Board Policies
•
Contains detailed procedures for reporting and investigating complaints of sexual
harassment
•
Go to building level supervisor or H.R.
•
Never have to report to the alleged harasser
•
Retaliation prohibited
•
Encouraged to report inappropriate behavior that you observe in the workplace to your
supervisor or higher up, if necessary
PART 2
SEXUAL HARASSMENT OF STUDENTS
MANDATORY REPORTERS
La. Child. Code Ann. art. 609(A)(1)
provides that any
mandatory reporter
who has reason
to believe that a child's physical or mental health or welfare is endangered as a result of
abuse or neglect shall report in accordance with
La. Child. Code Ann. art. 610
. A violation
of the duties imposed upon a
mandatory reporter
subjects the offender to criminal
prosecution authorized by
La. Rev. Stat. Ann. § 14:403(A)(1)
.
La. Child. Code Ann. art.
609(A)(2)
.
If you are aware of conduct by an adult that may constitute “child sex abuse”, you are
required
to report to DCFS or local law enforcement, or to make sure that it gets
reported.
Student Sexual Harassment Claims
Title IX establishes the basic law regarding sexual harassment
claims by students.
Students may also bring sexual harassment claims under
school district policies, state anti-bullying or anti-harassment
statutes, negligence theories.
Types of Student Sexual Harassment
Quid pro quo
– an educational decision or benefit is based on
a student’s submission to unwelcome sexual conduct.
Hostile environment
– acts of severe, pervasive, and
objectively offensive conduct or harassment.
Elements of a Title IX Claim
Employee-to-Student
An
appropriate school
official must:
Have
actual knowledge
of discrimination
Fail to respond adequately
Response must amount to
deliberate indifference
Gebser v. Lago Vista Independent
School District, 524 U.S. 274 (1998)
Elements of a Title IX Claim
Peer-to-Peer Sexual Harassment
•
An
appropriate person
must have had
actual knowledge
of the alleged
harassment.
•
The sexual harassment must be
severe, pervasive, and objectively
offensive
.
•
The school district responded with
deliberate indifference
; and
•
The student/victim must have been
denied an educational opportunity or
benefit
.
Davis v. Monroe Cty Bd of Educ,
526 U.S. 629 (1999)
“Appropriate Person”
A teacher is an “
appropriate person
” for purposes of
establishing liability under Title IX.
Therefore, it is very important that you report any
inappropriate sexual conduct that you observe - or otherwise
learn of – involving students.
Board Policy JAAA
Title IX Sexual Harassment
Dr. Gretchen Williams, Executor Director of Compliance, is our Title IX Coordinator.
Board policy sets forth detailed directions for reporting allegations of sexual
harassment involving students.
Dr. Williams will initiate an investigation and supportive measures for the student(s), as
needed.
Title IX prohibits retaliation against an employee or student who reports sexual
harassment.
Sexual Orientation
Transgender Status
•
DOE/OCR guidance says that Title IX covers sexual orientation and transgender
status.
•
Several circuit courts have held that discrimination against LGBTQI+ students is a
violation of Title IX
•
The Supreme Court has not ruled on this issue with respect to Title IX
•
Bostock v. Clayton – courts often apply Title VII standards to Title IX cases
THANK YOU!
ANY QUESTIONS?
Patricia A. Adams
Chief Legal Counsel
padams.legal@jpschools.org
Explore the legal landscape of sexual harassment in schools under Title IX and Title VII, covering employee and student rights, definitions, claims, and categories. Learn why it's crucial to address and prevent sexual harassment in educational settings to maintain a safe and respectful environment.
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Presentation Transcript
SEXUAL HARASSMENT Title IX of the Education Amendments of 1972 Title VII of the Civil Rights Act of 1964 PATRICIA A. ADAMS CHIEF LEGAL COUNSEL
WHY DO WE NEED TO TALK ABOUT THIS Every employee and every student has a legally protected right to work and learn in an environment free from sexually harassing behavior by supervisors, co-workers or any other member of the school community. You need to know what it looks like. You need to know that it is prohibited by state and federal law and Board policy and that you can, and will, be fired if it is determined that you sexually harassed a co-worker or a student. You need to know what to do if you feel that you are a victim of sexual harassment. You need to know what to do if you observe inappropriate behavior particularly if it involves a student. You need to help me keep the District from being sued!!
OVERVIEW Sexual harassment in schools presents two legal topics: 1. The sexual harassment of employees 2. The sexual harassment of students
PART 1 SEXUAL HARASSMENT OF EMPLOYEES
EMPLOYEE CLAIMS Title VII of the Civil Rights Act of 1964 establishes the basic law regarding sexual harassment in the workplace. Employees may also bring sexual harassment claims under state law, the 14thAmendment, school board policies, and even negligence theories.
Sexual Harassment as Defined Under Title VII Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (1) Submission to such conduct is made a term or condition of employment; Submission or rejection of such conduct is used as a basis for employment decisions; or Such conduct unreasonably interferes with performance or creates a hostile work environment. (2) (3) 29 C.F.R 1604.11
Categories of Sexual Harassment Quid pro quo this for that when a supervisor makes promises or threats in exchange for sex or submission to sexual behavior. Hostile environment sexually based conduct so severe and pervasive that it alters the conditions of employment and creates an abusive environment.
Examples of prohibited conduct 1. 2. 3. Graphic verbal comments about an individual's body or appearance. Sexual jokes, notes, stories, drawings, pictures, or gestures. Sexual slurs, leering, threats, abusive words, derogatory comments, or sexually degrading descriptions. Unwelcome sexual flirtations or propositions for sexual activity or unwelcome demands for sexual favors, including, but not limited to, repeated unwelcome requests for dates. Spreading sexual rumors. Touching an individual's body or clothes (including one's own) in a sexual way, including, but not limited to, grabbing, brushing against, patting, pinching, bumping, rubbing, kissing, and fondling. Cornering or blocking normal movements. Displaying sexually suggestive drawings, pictures, written materials, and objects in the educational environment. 4. 5. 6. 7. 8.
EMPLOYER LIABILITY An employer will be held strictly liable if it is determined that a supervisor made a tangible employment decision based on an employee s refusal of sex. An employer may still be held liable for a supervisor s sexually harassing behavior, even if the employee did not suffer a tangible adverse action, unless the employer can show that: Employer took reasonable steps to prevent and promptly correct the supervisor s sexually harassing behavior Employee failed to use preventive or corrective measures to avoid harm.
EMPLOYER LIABILITY What if an employee claims that a co-worker or vendor created a hostile work environment? The employer will be held liable if a supervisor knew, or should have known, about the harassment and failed to take timely and effective corrective action reasonably calculated to end the harassment.
Nontraditional Protections Same sex harassment actionable. Oncale v. Sundowner Offshore Srvcs., 523 U.S. 75 (1998) Gender stereotyping actionable. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Sexual orientation and transgender status actionable. Bostock v. Clayton County Georgia, 140 S. Ct. 1731 (2020)
Board Policy GAEAA Title VII Employee Sexual Harassment You will find it on the District website under Board Policies Contains detailed procedures for reporting and investigating complaints of sexual harassment Go to building level supervisor or H.R. Never have to report to the alleged harasser Retaliation prohibited Encouraged to report inappropriate behavior that you observe in the workplace to your supervisor or higher up, if necessary
PART 2 SEXUAL HARASSMENT OF STUDENTS
MANDATORY REPORTERS La. Child. Code Ann. art. 609(A)(1) provides that any mandatory reporter who has reason to believe that a child's physical or mental health or welfare is endangered as a result of abuse or neglect shall report in accordance with La. Child. Code Ann. art. 610. A violation of the duties imposed upon a mandatory reporter subjects the offender to criminal prosecution authorized by La. Rev. Stat. Ann. 14:403(A)(1). La. Child. Code Ann. art. 609(A)(2). If you are aware of conduct by an adult that may constitute child sex abuse , you are required to report to DCFS or local law enforcement, or to make sure that it gets reported.
Student Sexual Harassment Claims Title IX establishes the basic law regarding sexual harassment claims by students. Students may also bring sexual harassment claims under school district policies, state anti-bullying or anti-harassment statutes, negligence theories.
Types of Student Sexual Harassment Quid pro quo an educational decision or benefit is based on a student s submission to unwelcome sexual conduct. Hostile environment acts of severe, pervasive, and objectively offensive conduct or harassment.
Elements of a Title IX Claim Employee-to-Student An appropriate school official must: Have actual knowledge of discrimination Fail to respond adequately Response must amount to deliberate indifference Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998)
Elements of a Title IX Claim Peer-to-Peer Sexual Harassment An appropriate person must have had actual knowledge of the alleged harassment. The sexual harassment must be severe, pervasive, and objectively offensive. The school district responded with deliberate indifference; and The student/victim must have been denied an educational opportunity or benefit. Davis v. Monroe Cty Bd of Educ, 526 U.S. 629 (1999)
Appropriate Person A teacher is an appropriate person for purposes of establishing liability under Title IX. Therefore, it is very important that you report any inappropriate sexual conduct that you observe - or otherwise learn of involving students.
Board Policy JAAA Title IX Sexual Harassment Dr. Gretchen Williams, Executor Director of Compliance, is our Title IX Coordinator. Board policy sets forth detailed directions for reporting allegations of sexual harassment involving students. Dr. Williams will initiate an investigation and supportive measures for the student(s), as needed. Title IX prohibits retaliation against an employee or student who reports sexual harassment.
Sexual Orientation Transgender Status DOE/OCR guidance says that Title IX covers sexual orientation and transgender status. Several circuit courts have held that discrimination against LGBTQI+ students is a violation of Title IX The Supreme Court has not ruled on this issue with respect to Title IX Bostock v. Clayton courts often apply Title VII standards to Title IX cases
THANK YOU! ANY QUESTIONS? Patricia A. Adams Chief Legal Counsel padams.legal@jpschools.org
