Sexual Harassment

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					Sexual Harassment Awareness
      & Overview of the
  Dignity for All Students Act
            (“DASA”)
          McGraw Central School District



David V. Cirillo, Esq.
Assistant Director of Personnel and Labor Relations
OCM BOCES
Office of Personnel and Labor Relations
September 4, 2012
        Sexual Harassment Topics

•Potential Impact
•What is Sexual Harassment?
•Supreme Court Decisions
•McGraw CSD Policy:
 Purpose and Prohibitions
•Is it Sexual Harassment?
  Potential Impact of Sexual Harassment

•Expensive and lengthy litigation
•Employer liability
•Personal liability
•Termination of employment
  Potential Impact of Sexual Harassment

•Poor morale among employees and students
•Higher employee turnover and student
 dropout rates
•Increased absenteeism of employees and
 students
•Lower productivity by employees in the
 workplace and by students in the classroom
                 Title IX of the
         Education Amendments of 1972

  “No person in the United States shall, on the
   basis of sex, be excluded from participation
   in, be denied the benefits of, or be subjected
   to discrimination under any educational
   program or activity receiving Federal
   financial assistance.”
Volume 20 U.S.C. Section 1681
       What is Sexual Harassment?

•Unwelcome sexual advances, requests for
 sexual favors and other verbal or physical
 conduct of a sexual nature.

•Two forms:
    Quid Pro Quo
    Hostile Work Environment
       What is Sexual Harassment?

                 Quid Pro Quo

When submission is made an explicit or implicit term
or condition of an employee’s employment or a
student’s education,

or

When submission or rejection is used as a factor in
decisions affecting an employee’s employment or a
student’s education.
         What is Sexual Harassment?

           Hostile Work Environment
The conduct has the effect of substantially or
unreasonably:

1. Interfering with an employee’s work performance
   or a student’s academic performance or
   participation in school activities,

or…
         What is Sexual Harassment?

           Hostile Work Environment
2. Creating an intimidating, hostile, or offensive
   working or educational environment.

   The conduct must be sufficiently severe, pervasive
   and objectively offensive to a reasonable person.
          What is Sexual Harassment?

            Hostile Work Environment
                    Examples

•Verbal

•Non-Verbal

•Physical
            What is Sexual Harassment?

             Hostile Work Environment
                     Examples
                      Verbal
• Jokes
• Slurs
• Suggestive comments
• Threats
• Requests for Sexual Favors
            What is Sexual Harassment?

              Hostile Work Environment
                      Examples
                     Non-Verbal
• Displaying pornographic/obscene images
• Whistling
• Sexually suggestive gestures or motions
• Use of District email to send sexually
  suggestive/graphic material
• Staring
         What is Sexual Harassment?

           Hostile Work Environment
                   Examples

                      Physical

• Sexual Assault
• Petting, pinching, grabbing, holding, hugging,
  kissing, tickling, massaging, exposing body parts
        What is Sexual Harassment?

                “Unwelcome” Behavior

Behavior is “unwelcome” if the student or employee
did not request or invite it and regarded it as
undesirable and offensive.

“Unwelcomeness” is presumed in adult-to-student
quid pro quo cases.
         What is Sexual Harassment?

                      Retaliation
Any act of retaliation against persons who oppose
sexual harassment, who file a complaint, who are
witnesses, or who assist or participate in an
investigation is prohibited and illegal.

Retaliation includes but is not limited to threats,
intimidation, ridicule, bribes, destruction of property,
spreading rumors, stalking, harassing phone calls, or
any other form of harassment.
SUPREME COURT
  DECISIONS
   Meritor Savings Bank v. Vinson (1986)

• Held that “sufficiently severe and pervasive” conduct of a
  sexual nature creates a hostile work environment.

• Established that harasser conduct “unwelcome” to the victim
  establishes a violation.
         Franklin v. Gwinnett County
            Public Schools (1992)
A teacher harassed a female student from the
beginning of her sophomore year to the spring of her
junior year. He would ask her about her sexual
experiences and if she would ever consider having
sex with an older man. On several occasions he
forcibly kissed her, removed her from other classes
and took her to his office.          Teachers and
administrators knew about the harassment but did
nothing to stop it.

Holding: Establishes that a school district can be held
liable in damages under Title IX where an employee
sexually harasses a student.
       Gebser v. Lago Vista ISD (1998)

Established parameters of school district liability in
sexual harassment cases.

Holding: Schools can be held liable for employee-to-
student sexual harassment if a responsible school
official (one with authority to take corrective action)
had actual knowledge of, and was deliberately
indifferent to, the harassment.
    Davis v. Monroe County BOE (1999)

Extended recovery of damages under Title IX to
student-on-student sexual harassment.

Holding:

A school board may be liable for student-to-student
harassment if it:

(1) has actual knowledge of the harassment; and
(2) was deliberately indifferent to the sexual
    harassment.
   Harris v. Forklift Systems, Inc. (1995)

A female employee was hired as a rental manager at
a company.        She was continually mocked and
ridiculed with dirty jokes, lewd comments, and sexual
innuendo by the president of the company.

Holding: Harassment need not cause psychological
harm or other injury to the victim.

Victim may recover damages if conduct is reasonably
perceived as abusive or hostile.
    Jackson v. Birmingham BOE (2005)

Title IX protects from retaliation employees who bring
complaints on behalf of others.
       McGraw Central School District
        Sexual Harassment Policies

Policy # 3000: Prohibits Discrimination and
Harassment.

Policy # 6000: Prohibits Sexual Harassment.


• What is the purpose of the District’s policies?

• What do the policies prohibit?
             What is the purpose of
             the District’s policies?
The policies recognize that:

• Board is committed “to non-discrimination and
  recognizes its responsibility to provide an
  environment that is free of harassment and
  intimidation as required by Federal and State law.”

• “…recognizes its responsibility to provide… an
  environment that is free of sexual harassment,
  including sexual violence. Sexual harassment
  including sexual violence is a violation of law and
  stands is direct opposition to District policy”
        What do the policies prohibit?

• “The Board prohibits and condemns all forms of
  discrimination and harassment on the basis of race,
  color, creed, religion, national origin, political
  affiliation, sex, sexual orientation, age, marital
  status, military status, veteran status, disability, use
  of a recognized guide dog, hearing dog or service
  dog, or domestic violence victim status ...”

• “The Board prohibits and condemns all forms of
  sexual harassment..”

• Applies to employees, volunteers, students,
  contractors and vendors.
McGraw Central School District




   Title IX Compliance Officer:
            Mary Curcio
          (607) 836-3636
            Is it sexual harassment?


• For the past year, an employee has been subjected
  to daily fondling by her supervisor against her will.
          Is it sexual harassment?


• An employee likes to tell sexually-explicit jokes at
  team meetings. A co-worker tells him she finds his
  jokes offensive and asks him to stop. He stops.
           Is it sexual harassment?


• In the Transportation garage, the mechanics, all
  male, constantly use foul language and frequently
  whistle and hoot at female bus drivers. One driver
  complains to her supervisor but the supervisor takes
  no action.
           Is it sexual harassment?


• A male student is drunk at the prom and exposes
  himself to two female students. The next day he is
  extremely embarrassed and apologizes profusely to
  the female students.
          Dignity for All Students Act

• Education Law § 10 et al already prohibits
  discrimination and harassment of students in public
  schools
• Amended law specifically prohibits bullying and
  cyberbullying
• Requires the District to adopt policies and
  procedures designed to create a school environment
  free from such conduct
• Effective July 1, 2013
        Dignity for All Students Act




“No student shall be subject to harassment or
bullying by employees or students on school
property or at a school function…”
          Dignity for All Students Act

• Harassment and bullying is defined as the creation
  of a hostile environment by conduct or by threats,
  intimidation or abuse that

(a)Unreasonably and substantially interferes with a
   student’s educational performance, opportunities
   or benefits, or mental, emotional or physical well-
   being…
          Dignity for All Students Act
(b)reasonably causes or would be expected to cause
   a student to fear for his or her physical safety;
(c)reasonably causes or would be expected to cause
   physical injury or emotional harm to a student; or
(d)occurs off school property and creates or would
   foreseeably create a risk of substantial disruption
   within the school environment, and where it is
   foreseeable that the conduct might reach school
   property.
         Dignity for All Students Act

Acts of harassment and bullying include acts based
on a person’s actual or perceived race, color, weight,
national origin, ethnic group, religion, disability,
sexual orientation, gender or sex.
         Reporting Obligations of
    School Employees under Dignity Act
  Who is required to report instances of
 harassment, bullying or discrimination to
              the District?

All school employees who witness harassment,
bullying or discrimination, or who receive an oral or
written report of harassment , bullying or
discrimination
         Reporting Obligations of
    School Employees under Dignity Act
             When to report?

Must promptly orally notify designated school official
“not later than one school day after such employee
witnesses or receives a report of harassment, bullying
or discrimination;” and

Must file a written report with the designated school
official not later than two school days after making
the oral report.
     Reporting Obligations of
School Employees under Dignity Act


 Board policy will identify designated
            school official
          Dignity for All Students Act

                     Retaliation

Act prohibits retaliation against any individual who, in
good faith, reports, or assists in the investigation of,
harassment, bullying or discrimination
   Questions?

 David V. Cirillo, Esq.
dcirillo@ocmboces.org
     (315)433-2629

				
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