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

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

• 15 of all claims were filed by men
• Over 50 million in damages were paid in 2002

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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...

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Quid Pro QuoSexual Harassment

• Submission to such conduct is made either
  explicitly or implicitly a term or condition of
  an individuals employment
• Examples
• Explicit
• Implicit

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Quid Pro QuoSexual Harassment (contd.)

• 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.

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Hostile Work Environment Sexual Harassment

• Such conduct has the purpose or effect of
  unreasonably interfering with an individuals
  work performance or creating an intimidating,
  hostile, or offensive work environment.
• Examples
• Lewd jokes
• Offensive e-mail of a sexual nature

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Misconceptions

• Sexual harassment concerns are killing humor at
  the workplace.
• Humor isnt 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.

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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 ones gender.
• Time, place, and manner restrictions apply
• Examples

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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

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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.

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In What Context Do Tangible Employment Actions
Usually Arise?

• A supervisor who takes adverse employment action
  against a subordinate because the subordinate
  rejected the supervisors 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.

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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 employees
  daily work activities.

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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 doesnt complain.

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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
  employees sexual harassment complaint and
  stopped the harassment immediately, the employer
  could not be held liable twice for the same act.
  

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• 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-workers actions physically
  threatened appellant, nor did his conduct
  interfere unreasonably with a reasonable persons
  work performance. The co-workers actions did
  not undermine employee workplace competence and
  did not constitute the type of extreme conduct
  that would prevent employees from succeeding.

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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.

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WAS THE HARASSMENT UNWELCOME?

• The courts 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.

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OTHER FACTORS COURTS WILL LOOK AT TO DETERMINE IF
HARASSMENT WAS UNWELCOME

• Complainants participatory conduct
• if complainant made clear behavior was unwelcome
• if complainant filed grievance or complaint
• how long complainant waited to file complaint and
  why.

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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.

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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.

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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

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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.

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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 principals knowledge of the
  teachers 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 teachers
  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.

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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.

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Title IX Sexual Harassment

• Sexual harassment of students verbal,
  nonverbal, or physical conduct of a sexual
  nature, when it denies or limits the students
  ability to participate in or receive benefits
  from the schools program.

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Is the District Protected if the Conduct Doesnt
Constitute a Title IX Violation?

• Maybe. But, such conduct is inappropriate could
  be illegal and should not be allowed, even if
  the conduct doesnt deny or limit the students
  ability to participate.

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Districts Obligations under Title IX

• Ensure that students are not denied or limited in
  their ability to participate in or benefit from
  the schools 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).

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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.

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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

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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
  schools program.

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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.

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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.

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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.

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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).

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Recap What You Should Know About Handling
Sexual Harassment Complaints

• Take the report seriously.
• Listen, dont agree or disagree, and dont judge.
  
• Dont delay.
• Respond to concerns.
• Document.
• Follow up on the complaint.
• Avoid using dangerous words.

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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.

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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, DONT!

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Key Steps in Conductingthe Investigation
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An Investigator Should

• Be independent
• Have authority
• Be knowledgeable
• Be an effective communicator
• Be culturally sensitive

• Use a developmentally appropriate approach
• Be a neutral fact finder
• Make a complete and careful investigation
• Be curious

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An Investigator Should

• 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

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An Investigator Should

• Protect the victim
• Protect the rights of the accused
• Protect the District

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Key Steps

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

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Key Steps, continuedThe 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.

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Key Steps, continued

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

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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 dont delay the interview
• Write down factual words and phrases to explore
  later
• After you have listened, go back and cull out the
  5 Ws and the Big I

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Key Steps, continued (The 5 Ws and the Big I)

• Who
• What/How
• When
• Where
• Why
• Is that it

?
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Key Steps, continued

• In conducting the interview
• Be businesslike, but considerate and respectful
• Encourage person to be as specific as possible
• Names
• Dates
• Frequency
• Places
• Specific behavior
• Names and locations of witnesses

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Key Steps, continued

• Make careful notes during the interview, both of
  the questions that the complainant asks and the
  complainants responses
• Write down factual statements
• Dont editorialize
• Later on, go back and write up your notes in a
  readable fashion

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Key Steps, continued

• Obtain a written statement from the complainant
• A thorough written version of what is alleged to
  have happened based on the interview
• Signed by the complainant
• Placed in the investigation file

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Key Steps, continued

• Do you write the statement or does the
  complainant?

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Key Steps, continued

• Determine effect of harassment on victim
• Explore what complainant wants out of this
• Review complainants statement and your notes
  from the interview and . . .

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Key Steps, continued

• Plan your fact gathering carefully
• List of witnesses
• Prepare questions
• Determine documentary evidence
• Try to determine what information you want from
  each witness
• Be prepared for unexpected answers and more
  inquiries

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Key Steps, continued

• Dont stop the investigation prematurely
• Supplement witness list, as needed
• Supplement list of documents needed

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Key Steps, continued

• Assemble investigation file
• Keep a time line
• Limit scope of inquiry
• Visit the site
• Conduct interview of witnesses and alleged
  harasser

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Key Steps, continued (Interviewing the alleged
harasser)

• Brief the person on the process to be followed
• Avoid using the word harassment
• . . . a serious matter has been raised to which
  you have been connected involving unwelcome
  behavior on your part.

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Key Steps, continued (Interviewing the alleged
harasser)

• Explain ultimate aim
• Be prepared to explain the persons rights
• Explain that investigation will be neutral
• Caution about confidentiality
• Warn against retaliation
• Review allegations with the person
• Listen to the response and question the person
  the same as you did the complainant

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Key Steps, continued (Interviewing the alleged
harasser)

• Explore motive
• Explore whether conduct was welcome
• Obtain available documentation
• After the interview, obtain a signed, written
  statement, detailing all responses to the alleged
  events

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Key Steps, continued

• Representatives at the interview
• Should NOT speak for the person
• Fifth Amendment does not apply
• Consider a directive

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Key Steps, continued

• Whenever possible, corroborate testimony and
  substantiate documentation
• Best evidence is personal knowledge
• Fill in the gaps on the time line
• Clarify conflicting statements
• Examine inconsistencies
• Clarify conflicts with information in documentary
  evidence, if possible

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Key Steps, continued

• Pursue the facts upon which voiced opinions or
  conclusions are based
• If a person cant remember, try questions
  designed to refresh the memory
• Was it before or after Spring Break?

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Key Steps, continued

• Follow up
• Consider re-interviews
• All parties should have an opportunity to rebut
  adverse statements/evidence
• Final interview with the alleged harasser
• Reach a conclusion

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Reaching a Conclusion

• Analyze the information
• Determine if the alleged conduct is likely to
  have occurred and whether its harassment
• Confer with legal counsel
• Are your conclusion and recommendation defensible?

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Reaching a Conclusion, continued

• If you absolutely cant
• Educate all involved regarding District policy
• Monitor the situation for further problems
• Give appropriate directives on
• No retaliation
• Being mindful of District policy on sexual
  harassment
• Not placing yourself in a situation that can
  easily be misinterpreted

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Reaching a Conclusion(Preparing the Report of
Findings)

• It should contain an Executive Summary
• It should be brief and clearly written
• After the Executive Summary
• List each allegation
• List a finding
• List evidence in support of finding
• Give your conclusion
• Reference documentary evidence

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Reaching a Conclusion,continued

• Dont punish the victim
• Inform all parties of the results

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What Should the Focus Be

• Focus on the effect of alleged behavior
• Focus on expected standards of behavior
• Focus on context
• Focus on welcomeness
• Focus on patterns of behavior

• Focus on establishing credibility
• Focus on corroboration
• Outcry
• Diary
• Changed behavior
• Correspondence to/from harasser

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How to Ensurea Successful Investigation

• Take complaints seriously
• Keep an open mind
• Investigate promptly
• Document, document, document
• Corroborate, corroborate, corroborate

• Check with legal counsel
• Preserve the privacy
• Act in a neutral and professional manner
• Do not take sides
• Avoid dangerous words
• Honey
• Hes just teasing

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Dealing with the Media

• One spokesperson
• Brief the spokesperson
• Keep the spokesperson updated
• Dont evade the media, but be prepared for an
  honest statement that protects the District

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Dealing with the Media

• If youre not the spokesperson
• We have had a report of inappropriate contact
  with a student by a District employee. We take
  all such complaints very seriously. The report
  is currently under investigation in accordance
  with District policy on such matters. The
  Districts spokesperson on this matter, from this
  point forward, will be the Districts public
  relations officer, _____________, who will answer
  any questions you may have during the
  investigation.

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Dealing with the Media

• Optional
• In accordance with District administrative
  procedure on such matters, the employee has been
  (placed on temporary leave status) or
  (temporarily reassigned away from the campus)
  pending the outcome of the investigation.

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The End