Title IX: Sex-Based Harassment and Bullying

1. Title IX: Sex-Based Harassment and Bullying September 30, 2014

2. Roadmap for this presentation • Prevalence of Sex-Based Harassment and Bullying • How do WIOA & Title IX Apply? • What is Sex-Based Harassment and Bullying? • A Recipient’s Basic Responsibilities • Adopting Policies that Address Sex-Based Harassment and Bullying

3. Prevalence of Sex-Based Harassment and Bullying

4. Poll question Have you seen or heard of any incidents of sexual harassment, sexual violence, or bullying at Job Corps Centers, American job Centers, or other WIA Title I programs? A: Yes B: No

5. Harassment & bullying • Among students aged 12-18 during 2011: • 28% were bullied at school • 9% were cyberbullied • 28% saw hate-related graffiti • 9% were targets of hate-related words at school

6. Sexual violence • Nearly 20% of college women, and roughly 6% of college men, are victims of attempted or completed sexual assault. • Over 4,800 sex offenses were reported on college campuses in 2012. • More than 10% of high school women and 4% of high school men were physically forced to have sexual intercourse when they did not want to. • During the 2009-2010 school year, there were 600 incidents of rape or attempted rape and 3,600 incidents of sexual battery other than rape recorded by public school districts.

7. OCR enforcement since January 2009 • Nearly 2,000 OCR complaints involving sex-based harassment • More than 250 OCR complaints involving sexual violence • 25 proactive investigations involving sexual violence • Key resolutions posted on OCR’s website

8. How Do Title IX & WIOA Apply?

9. Sec. 188 of the Workforce Innovation and Opportunity Act of 2014 • “No individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with, any such program or activity because of race, color, religion, sex (except as otherwise permitted under title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)), national origin, age, disability, or political affiliation or belief.”

10. 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 WIOA & Title IX, covered entities are considered recipients of federal financial assistance and programs in the Workforce Development System

11. Recipients & programs covered • WIOA & Title IX apply to: • Programs and activities that are part of the One-Stop delivery system • Partners listed in section 121(b) to the extent that the programs and activities are being conducted as part of the One-Stop delivery system; and • The employment practices of a recipient and/or One-Stop partner

12. What is Sex-Based Harassment and Bullying?

13. Bullying • Bullying is unwanted, aggressive behavior that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. • Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, or purposefully excluding someone from a group

14. Harassment Harassment is unwelcome verbal or physical conduct based on a protected class.

15. Types of Sex-Based Harassment • Sexual harassment: unwelcome conduct of a sexual nature (including sexual violence) • Sexual violence: physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., rape or sexual assault) • Gender-based harassment: nonsexual, unwelcome conduct based on the student’s actual or perceived sex, including harassment based on gender identity, gender expression, and nonconformity with gender stereotypes

16. “Bullying” vs. “Harassment” • The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine how an organization is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. • When the behavior implicates Title IX, persons charged with EO responsibilities should look beyond simply disciplining the perpetrators.

17. “Hostile environment” • Sex-based harassment creates a “hostile environment” when the conduct is sufficiently serious that it denies or limits an individual’s ability to participate in or benefit from the services, activities, or opportunities offered by a recipient. • Recipients are responsible for addressing incidents of harassment about which they know or reasonably should know.

18. Hostile Environment Factors • Context & scope • Nature (e.g., verbal or physical) • Frequency & duration • Location of incidents • Identity, number, and relationships of persons involved • Generally, the more severe the conduct, the less need to show repeated incidents.

19. Who can be a harasser? • Individuals participating in WIA Title I programs and activities • Job Corps students or individuals using American Job Center resources • Employees of WIA program or activities • AJC Staff, eligible training provider staff, administrators • Third parties • a visiting trainers, guest speakers, contractors

20. Who can be harassed? • Title IX protects all individuals participating in WIOA Title I programs and activities from sex discrimination: • male and female • straight, gay, lesbian, bisexual and transgender • individuals with and without disabilities • individuals of different races and national origins

21. A Recipient’s Basic Responsibilities

22. Investigate • 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.

23. Respond promptly and effectively If an investigation reveals that sex-based harassment created a hostile environment, the recipient must then take prompt and effective steps reasonably calculated to: • end the harassment, • eliminate the hostile environment, • prevent its recurrence, and • remedy its effects, as appropriate.

24. Remedies • Appropriate responses will depend on the facts of each case; they should always be tailored to redress the specific problems at the recipient. • Effective remedial action may include: • disciplinary action against the perpetrator • remedies for the complainant and others • changes to the recipient’s overall services or policies

25. Examples

26. Examples • Students in an American Job Center training course doctor a photo of a new student in a sexually suggestive position, post it online, and send it to other students via cell phones. • An older male trainer repeatedly makes unwelcome aggressive sexual advances on a younger male student, makes explicit comments on his sexual attractiveness. The student initially complains, but later stops reporting or objecting to the comments. • Peers make sexual jokes about a pregnant Job Corps student and call her sexually charged names.

27. Examples • A female Job Corps employee is spit on, mocked, and routinely called names, including anti-gay slurs, because she has short hair, a deep voice, and is perceived to be a lesbian. • Male participants in a WIOA Title I program physically and sexually assault a transgender boy in the boys restroom. The victim tells the program administrator that he was "bullied for being trans."

28. Examples • A male American Job Center employee harasses a female using the center’s resources. He refuses to refer her to any jobs because he thinks she will not be able to handle the work because she is a girl. • Several students steal and deface a male student's equipment and supplies at an eligible training provider’s cosmetology program because they think men should not be cosmetologists.

29. Adopting Policies that Address Sex-Based Harassment and Bullying

30. Proactive prevention strategies • Adopt policies and procedures specifically addressing harassment. • Publicize that recipient will not tolerate harassment and will respond to any reports of such conduct. • Conduct a climate survey. • Include information on harassment issues in orientation programs for program participants and employees.

31. Training for employees • A recipient needs to ensure that, with respect to sex-based harassment and bullying: • responsible employees know how to respond appropriately; • other responsible employees know that they are obligated to report incidents to appropriate officials; and • all other employees understand how to respond.

32. Educate program participants • Ensure WIOA Title I program participants understand their rights under Title IX and WIOA • Include training in orientation programs • Clearly identify (a) the offices or individuals with whom participants can speak confidentially and (b) responsible employees, such as the program’s EO Officer. • Provide information about ability to file EO complaint

33. Additional resources • Civil Rights Center Compliance Assistance Webpage: http://www.dol.gov/oasam/programs/crc/external-compliance-assistance.htm • OCR Reading Room: www.ed.gov/ocr/publications.html • Q&A on Title IX and Sexual Violence (2014) – www.ed.gov/ocr/docs/qa-201404-title-ix.pdf • Dear Colleague Letter: Sexual Violence (2011) – www.ed.gov/ocr/letters/colleague-201104.pdf • Dear Colleague Letter: Harassment and Bullying (2010) – www.ed.gov/ocr/letters/colleague-201010.pdf • Dear Colleague Letter: Sexual Harassment (2006) –www.ed.gov/ocr/letters/sexhar-2006.html • Sexual Harassment Guidance (2001) – www.ed.gov/ocr/docs/shguide.html • Notalone.gov

34. Questions?

35. Thank you! Joseph W. Wheeler Office for Civil Rights U.S. Department of Education joseph.wheeler@ed.gov www2.ed.gov/ocr Jessica K. Larkin Civil Rights Center U.S. Department of Labor Larkin.jessica.k@dol.gov http://www.dol.gov/oasam/programs/crc/

36. This presentation provides general information and does not represent a complete recitation of the applicable law and OCR policy in this area. It does not address specific issues of compliance because determinations of compliance depend on specific facts on a case-by-case basis.