SEXUAL HARASSMENT: WHAT IS IT?, AND WHAT DO YOU DO ?

1. SEXUAL HARASSMENT: WHAT IS IT?, AND WHAT DO YOU DO ?

2. SEXUAL HARASSMENT CLAIMS

3. SEXUAL HARASSMENT CLAIMS • 15 % of all claims were filed by men • Over $50 million in damages were paid in 2002

4. Title VIISexual Harassment Defined • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when...

5. Quid Pro QuoSexual Harassment • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment • Examples: • Explicit • Implicit

9. Quid Pro QuoSexual Harassment (cont’d.) • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual • Example: • Ms. Jones refused to go out on dates with her supervisor. She was suddenly reassigned to a less desirable position, although her evaluations and work performance are good.

10. “Hostile Work Environment” Sexual Harassment • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. • Examples: • Lewd jokes • Offensive e-mail of a sexual nature

12. Misconceptions • Sexual harassment concerns are killing humor at the workplace. • Humor isn’t dead in the workplace, but jokes or kidding around can potentially subject the school district to a sexual harassment claim when: • There is a power difference by position (principal vs. aide); • There is numerical or other imbalance between one person or group and another person involved (six men, one woman); • The jokes are frequent and sexually explicit or graphic; or • The jokes are unwelcome.

13. More Misconceptions • Sexual harassment concerns are killing freedom of speech. • Freedom of speech involves a free discussion of ideas. Freedom of speech does not include asking employees for sexual favors or creating a hostile work environment because of one’s gender. • Time, place, and manner restrictions apply • Examples

14. When Might an Employee Have a Meritorious Sexual Harassment Case Against the District? Rule of Thumb: • The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action.” • Tangible employment action usually involves a supervisor and subordinate. • Quid Pro Quo

15. What is Meant by “Tangible Employment Action?” • “Tangible employment action” means a significant change in employment status, or threat of it. • Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment.

16. In What Context Do Tangible Employment Actions Usually Arise? • A supervisor who takes adverse employment action against a subordinate because the subordinate rejected the supervisor’s sexual demands has taken a tangible employment action. • Likewise, if the supervisor promotes the subordinate because the subordinate submitted to sexual demands, that is also a tangible employment action.

17. Supervisor Defined • A supervisor who harasses an employee may subject the school district to liability • Supervisor: • Someone who has authority to recommend a tangible employment action affecting the employee; or • Someone with authority to direct the employee’s daily work activities.

18. How Can a School District Avoid Liability for Sexual Harassment by a Supervisor? • The school district may avoid liability by proving that • It exercised reasonable care to prevent and promptly correct harassment; and • The employee unreasonably failed to complain to the school district or to avoid harm. • This means all supervisors have a duty to report or investigate suspected sexual harassment, even if the employee/alleged victim doesn’t complain.

19. SIGNIFICANT FIFTH CIRCUIT DECISIONS • Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999). An employee alleged that her supervisor sexually harassed her and filed suit against both her supervisor and employer. The court held that because the defendant promptly responded to employee’s sexual harassment complaint and stopped the harassment immediately, the employer could not be held liable twice for the same act.

20. Sheperd v. Comptroller of Public Accounts of the State of Texas, 168 F.3d 871 (5th Cir. 1999) Employee brought suit against employer alleging a hostile working environment. The court held that although comments made by a co-worker were boorish and offensive, they were not severe and were the equivalent of a mere utterance of an epithet that endangered offensive feelings. None of the offending co-worker’s actions physically threatened appellant, nor did his conduct interfere unreasonably with a reasonable person’s work performance. The co-worker’s actions did not undermine employee workplace competence and did not constitute the type of extreme conduct that would prevent employees from succeeding.

21. TOTALITY OF THE CIRCUMSTANCES INQUIRY: • Courts will look at two (2) things in determining the totality of the circumstances regarding a hostile environment claim: • whether the conduct was unwelcome • the severity and frequency of the harassment.

22. WAS THE HARASSMENT UNWELCOME? • The court’s key inquiry will revolve around whether the victim sought or incited the conduct and whether they felt the conduct was undesirable and offensive. • Example: The Seventh Circuit held that the harassment was welcome because the victim had, in the past, instigated, participated in and been receptive to the use of sexual humor/pranks, had a foul mouth, told dirty jokes and made sexually explicit offers, jokes and suggestions.

23. OTHER FACTORS COURTS WILL LOOK AT TO DETERMINE IF HARASSMENT WAS UNWELCOME • Complainant’s participatory conduct; • if complainant made clear behavior was unwelcome; • if complainant filed grievance or complaint; • how long complainant waited to file complaint and why.

24. EXAMPLE • Butler v. Ysleta ISD, 161 F.3d 263 (5th Cir. 1998) In this case, female teachers complained about letters they received from their principal with sexual content. The court held that the letters did not support a sexual harassment claim because similar letters had also been sent to male employees. Therefore, the letters were not based on sex.

25. CAN THERE BE SAME SEX SEXUAL HARASSMENT? • Yes. • The United States Supreme Court in Oncale v. Sundowner Offshore Services Inc., held that as long as the harassment was based on sex, was severe and pervasive enough to create an objectively hostile or abusive work environment and was such that a reasonable person would find it hostile/abusive it was harassment.

26. BIG DECISIONS REGARDING SEXUAL HARASSMENT • Oncale v. Sundowner Offshore Services, Inc • Gebser v. Lago Vista ISD • Ellerth v. Burlington Industries • Faragher v. City of Boca Raton

27. Oncale v. Sundowner • A male employee who worked on an oil platform in the Gulf of Mexico as part of an eight man crew sued his employer alleging sex harassment by his male supervisors. Court held for the employee finding that same sex sexual harassment is covered by Title VII.

28. Gebser v. Lago Vista ISD • A female high school student and her parents sued the school district under Title XI for alleged sexual harassment by a male teacher. The court held that the school principal’s knowledge of the teacher’s inappropriate comments alone was insufficient to alert him to the fact that the teacher was sexually involved with the student. • School systems are not liable for a teacher’s sexual harassment of a student absent actual notice of the harassment to “an official of the entity who at a minimum has authority to address the alleged discrimination and to institute corrective measures and who responds with deliberate indifference.”

29. Ellerth v. Burlington • Supreme Court held that an employer is strictly liable for sexual harassment by a supervisor that culminated in a “tangible employment action” such as discharge, demotion or an undesirable reassignment. • Also provided for affirmative defenses available to employers.

30. Title IX Sexual Harassment • Sexual harassment of students: verbal, nonverbal, or physical conduct of a sexual nature, when it denies or limits the student’s ability to participate in or receive benefits from the school’s program.

31. Is the District Protected if the Conduct Doesn’t Constitute a Title IX Violation? • Maybe. But, such conduct is inappropriate; could be illegal; and should not be allowed, even if the conduct doesn’t deny or limit the student’s ability to participate.

32. District’s Obligations under Title IX • Ensure that students are not denied or limited in their ability to participate in or benefit from the school’s program as a result of their gender. • Issue policies against sex discrimination (FNCJ). • Adopt grievance procedures. • Designate at least one employee to coordinate compliance and investigations (Title IX Coordinator).

33. WHAT IF THE SEXUAL HARASSMENT INVOLVES A STUDENT? • Employees shall not engage in conduct constituting sexual harassment or sexual abuse of students. Romantic relationships between employees and students are prohibited. • Whether welcome or unwelcome • Notify the campus principal, immediate supervisor or Title IX coordinator • Also notify TDPRS if appropriate.

34. WHEN CAN SCHOOLS BE LIABLE FOR SEXUAL HARASSMENT OF STUDENTS? • If an employee sexually harasses a student and an official who has authority to address the harassment has actual knowledge of the harassment and that official is deliberately indifferent in responding to the harassment. • If one student sexually harasses another and an official who has authority to address the harassment has actual knowledge of the harassment and that official is deliberately indifferent in responding to the harassment

35. TITLE IX • Title IX of the Educational Amendments of 1972 prohibits discrimination on the basis of sex in federally assisted education programs and activities. Sexual harassment of students, which includes unwelcome verbal, nonverbal or physical conduct of a sexual nature, can violate Title IX as it can deny or limit the students ability to participate in or receive benefits from the school’s program.

36. WHAT TO DO UPON RECEIVING A COMPLAINT OF SEXUAL HARASSMENT? • Discuss the actions the student or parent is seeking in response to the harassment. • Describe grievance and complaint procedures. • Take interim measures like separating students, transferring students or placing employees on administrative leave with pay. • Additionally, if the harassment is at the hands of an employee it may be necessary to notify TDPRS.

37. Investigation • Attempt to keep all names confidential. • Eliminate any hostile environment that has been created. • Reassure the student that there will be no retaliation for their complaint.

38. Confidentiality Concerns • Explain: • That confidentiality cannot be guaranteed because an investigation must be completed, and that the investigation will be conducted on a need-to-know basis. • The process of investigating and responding to a complaint. • That the investigative records are probably subject to the Public Information Act, meaning they may have to be disclosed to the public if a request is made.

39. FERPA Applies • Explain that written statements from or about students are “education records” subject to Family Education Rights and Privacy Act. • This means that these records, and the information contained in them, may not be divulged to any school official who does not have a legitimate educational interest in the information. These records generally may not be divulged to a third party outside the school setting, absent parental permission or a valid subpoena (Board Policy FL).

40. Recap: What You Should Know About Handling Sexual Harassment Complaints • Take the report seriously. • Listen, don’t agree or disagree, and don’t judge. • Don’t delay. • Respond to concerns. • Document. • Follow up on the complaint. • Avoid using dangerous words.

41. Improper Relationship Between Educator and Student • State Law – Penal Code 21.12 • Employee of public or private primary or secondary school • No sexual conduct, sexual intercourse • Person enrolled in school where person works who is not spouse • Felony of 2nd degree • Result- Potential felony for adult-adult (student) consensual relationship.

42. Personal Behavior Checklist Use the following checklist to look at how you behave: • Does this behavior contribute to getting our goals accomplished? • Could this behavior hurt my fellow employees if they were here? • Could this behavior be interpreted as harmful or harassing by an outsider? • Could this behavior be sending out signals that invite harassing behavior on the part of others? THE RULE OF THUMB IS: WHEN IN DOUBT, DON’T!

43. Key Steps in Conductingthe Investigation

44. Use a developmentally appropriate approach Be a neutral fact finder Make a complete and careful investigation Be curious An Investigator Should: • Be independent • Have authority • Be knowledgeable • Be an effective communicator • Be culturally sensitive

45. Be prepared to testify Investigate all complaints Determine if matter can be resolved informally Notify Superintendent Determine if TDPRS should be informed Investigate all allegations Be reassuring and a good listener Be vigilant and a protector An Investigator Should:

46. An Investigator Should: • Protect the victim • Protect the rights of the accused • Protect the District

47. Key Steps • Be prompt and thorough • Generally, interview complainant first • Take care of the preliminaries before conducting the interview and obtaining a written statement

48. Key Steps, continued“The preliminaries” • Inform the person about: • Your role and the process you will follow; • What will happen and when; • Who will make final determination following the investigation; • Ascertain whether the person has any immediate needs; • Her/his legal rights.

49. Key Steps, continued • If students are involved, determine whether you should obtain parental permission before questioning the students.

50. Key Steps, continued • Begin the interview process by listening to the complaint and clarifying the details. • How do you do that? • First, be reassuring • Listen • Take notes, but don’t delay the interview • Write down factual words and phrases to explore later • After you have listened, go back and cull out the 5 W’s and the Big “I”