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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.

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

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Sexual harassment awareness overview of the dignity for all students act dasa mcgraw central school district
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
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
Potential Impact of Sexual Harassment

  • Expensive and lengthy litigation

  • Employer liability

  • Personal liability

  • Termination of employment


Potential impact of sexual harassment1
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
Title IX of theEducation 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
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 harassment1
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 harassment2
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 harassment3
What is Sexual Harassment?

Hostile Work Environment

  • 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 harassment4
What is Sexual Harassment?

Hostile Work Environment

Examples

  • Verbal

  • Non-Verbal

  • Physical


What is sexual harassment5
What is Sexual Harassment?

Hostile Work Environment

Examples

Verbal

  • Jokes

  • Slurs

  • Suggestive comments

  • Threats

  • Requests for Sexual Favors


What is sexual harassment6
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 harassment7
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 harassment8
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 harassment9
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.


Sexual harassment awareness overview of the dignity for all students act dasa mcgraw central school district

SUPREME COURT

DECISIONS


Meritor savings bank v vinson 1986
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
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
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
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:

  • has actual knowledge of the harassment; and

  • was deliberately indifferent to the sexual harassment.


Harris v forklift systems inc 1995
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
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
McGraw Central School DistrictSexual 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
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
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
McGraw Central School District

Title IX Compliance Officer:

Mary Curcio

(607) 836-3636


Is it sexual harassment
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 harassment1
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 harassment2
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 harassment3
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
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 act1
Dignity for All Students Act

“No student shall be subject to harassment orbullying by employees or students on school property or at a school function…”


Dignity for all students act2
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 act3
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 act4
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
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 act1
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 act2
Reporting Obligations of School Employees under Dignity Act

Board policy will identify designated

school official


Dignity for all students act5
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
Questions?David V. Cirillo, Esq.dcirillo@ocmboces.org(315)433-2629


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