SEXUAL HARASSMENT

1
SEXUAL HARASSMENT

• North Carolina Department of Public Instruction
• September 21, 2007
• Howard Kallem
• Office of Equity and Diversity Services
• George Mason University
• 703 993 8859

2
Scenario 1

• Coach Dunton frequently makes jokes of a sexual
  nature to the boys during gym class, sometimes
  directing comments to certain students. Your son
  complains to you about them.
• Is this sexual harassment?
• Why or why not?
• Is there anything else you need to know?

3
Scenario 2

• Ms. Jules, a school teacher, greets her students
  with a big hug.
• Is this sexual harassment?
• Why or why not?

4
EFFECTS OF SEXUAL HARASSMENT

• Jeopardize students academic achievement
• Undermine their physical and emotional well-being
• Provoke retaliatory violence
• Damage the schools reputation
• Cause/increase community conflicts

5
SUPREME COURT DECISIONS

• Gebser v. Lago Vista Independent School
  District, 524 U.S. 274 (1998), and Davis v.
  Monroe County Bd. Of Educ., 526 U.S. 629 (1999),
  held that Title IX prohibits sexual harassment of
  students.

6
SEXUAL HARASSMENT DEFINED

• Conduct of a sexual nature
• That is unwelcome, and
• That denies or limits a students ability to
  participate in or receive the benefits, services
  or opportunities of the schools program

7
SEXUAL CONDUCT DEFINED

• Conduct of a sexual nature includes
• Requests for sexual favors
• Comments about someones body, sexual activity or
  sexual attractiveness
• Leering, whistling, or touching insulting or
  obscene comments, sounds or gestures, displays of
  sexually suggestive objects
• Rape, sexual assault, sexually motivated stalking

8
SEXUAL HARASSMENT

• Harassment by Person of the Same Sex
• Sexual harassment is prohibited regardless of the
  sex of the harasser or the victim, i.e., sexual
  harassment may occur if the harasser and the
  victim are the same sex

9
SEXUAL HARASSMENT

• Gay and lesbian students are protected from
  sexual harassment on the same basis as other
  students
• Title IX does not prohibit discrimination on the
  basis of sexual orientation

10
UNWELCOME CONDUCT

• In order to constitute prohibited sexual
  harassment, the conduct must be unwelcome
• With young children, consider degree to which
  they are able to recognize conduct as
  sexual/objectionable and degree to which they can
  object
• Consider whether sexual conduct between adult
  employee and student should ever be characterized
  as welcome by student

11
FIRST AMENDMENT CONSIDERATIONS

• Title IX is intended to protect students from
  discrimination, not to regulate the content of
  speech
• The mere expression of views, no matter how
  unpleasant, may be protected under First
  Amendment guarantee of freedom of speech
• OCRs regulations should not be interpreted in
  ways that lead to the suppression of protected
  speech

12
EXAMPLES OF SPEECH-RELATED CONDUCT NOT
CONSTITUTING HARASSMENT

• Classroom discussions
• Campus debates
• Informal discussions of controversial topics
  outside the classroom

13
EMPLOYEE HARASSMENT

• A school is responsible for sexually harassing
  conduct by an employee when
• The employee engages in the conduct in the
  context of carrying out responsibilities for
  providing benefits and services
• The harassment denies or limits the students
  ability to participate in or benefit from the
  program

14
EMPLOYEE HARASSMENT, contd.

• An employee (acting in the context of his/her
  responsibilities)
• explicitly or implicitly conditions a students
  participation in an education program or
  activity, or
• bases an educational decision on the students
  submission to unwelcome conduct of a sexual
  nature

15
HOSTILE ENVIRONMENT

• Unwelcome conduct of a sexual nature by an
  employee, another student, or a third party that
  denies or limits a students ability to
  participate in or benefit from the schools
  program

16
DENIES OR LIMITS

• To determine whether the conduct denies or limits
  benefits or services, consider
• The conduct from both a subjective and objective
  perspective
• All relevant circumstances, such as age, sex,
  disability status

17
SCHOOLS RESPONSIBILITIES

• If a principal, teacher, or other responsible
  employee learns of possible sexual harassment,
  the school must immediately
• conduct an appropriate inquiry, including interim
  measures
• take steps reasonably calculated to end the
  harassment

18
RESPONSIBILITIES, contd.

• generally, eliminate the effects of the
  harassment and
• take reasonable steps to prevent the harassment
  from happening again
• advise the parties about retaliation

19
REMEDIES

• Ongoing program to address harassment
• System for monitoring future incidents
• Periodic training for students and staff

20
CONFIDENTIALITY

• In any investigation or proceeding, the names of
  the parties and the allegations should be kept
  confidential to the greatest extent possible
• If student asks that name not be used, there may
  be steps school can and should take even though
  ability to respond may be limited

21
PROCEDURAL REQUIREMENTS

• Well-publicized policies against discrimination
  based on sex, including sexual harassment
• Effective and well publicized grievance
  procedures for students and their families to
  raise and resolve these issues
• Designate at least one employee to coordinate and
  carry out Title IX responsibilities

22
GRIEVANCE PROCEDURES

• Prompt and Equitable
• Widely publicized/available to students, parents,
  employees
• Covering harassment by employees, students, third
  parties
• Adequate, reliable and impartial investigation,
  including opportunity to present witnesses,
  evidence

23
GRIEVANCE PROCEDURES, contd.

• Reasonably prompt timeframes for major stages of
  the grievance process
• Notice to parties of the outcome
• Assurance that school will take steps to prevent
  further harassment and to correct its effects
  where appropriate

24
INVESTIGATIVE STRATEGIES

• Investigators role is as independent fact-finder
• Knowledgeable
• Neutral
• Culturally sensitive

25
INVESTIGATIVE STRATEGIES, contd.

• Take all complaints seriously
• Prompt and complete investigation of all
  allegations
• Identify specific allegations
• Identify specific parts of policy alleged to have
  been violated
• Identify all relevant facts
• Analyze the information/assess credibility
• Reach conclusions and document them

26
INVESTIGATIVE STRATEGIES, contd.

• Determine whether there is a need for interim
  measures
• Check school records for past incidents of
  harassment by the accused, past accusations by
  same victim
• Develop an investigative plan

27
INVESTIGATIVE STRATEGIES Keep Parties Informed

• Make sure parties understand the process
• Keep parties informed of status of investigation
• Inform parties and witnesses that schools policy
  protects against retaliation

28
INVESTIGATIVE STRATEGIES, contd.

• Assemble investigative file
• Keep timeline of the investigation
• Document all interviews
• Gather documents and identify source
• Visit the site of the incident
• Give each party opportunity to respond

29
INVESTIGATIVE STRATEGIES Complainant Interview

• Identity of the harasser(s)
• When/where each incident took place
• Whether the incident was isolated or part of a
  continuing pattern
• What happened
• Reaction of the complainant

30
Complainant Interview, contd.

• How the complainant was affected
• Any witnesses
• Whether the complainant talked to anyone about
  what happened
• Whether there is any documentation
• Whether the accused harassed others
• What the complainant wants to happen

31
INVESTIGATIVE STRATEGIES Interview of Alleged
Harasser

• If/how the alleged harasser knew the complainant
• Whether incident(s) occurred
• If so, when and where
• What was said and/or done
• The complainants reaction
• Any witnesses
• Whether the alleged harasser talked to anyone
• Whether there is any documentation

32
INVESTIGATIVE STRATEGIES Reaching a Conclusion

• Analyze the information 
• Assess credibility 
• Reach findings and conclusions as to each
  allegation of harassment
• Document the basis for each decision 
• Notify the parties of the results
• Maintain secure records

33
PREVENTION

• Periodic, in-depth training for staff and
  age-appropriate training for students, including
• Information on the nature of sexual harassment as
  distinguished from protected speech
• The damage that results from harassment
• Where students can find help
• Ways to oppose harassment and what to do about it

34
PREVENTION, contd.

• Well-publicized policy and grievance procedures
• Periodic assessment of school climate, with
  follow up as appropriate
• Encourage parents and students to notify school
  of harassment
• Require employees to report harassment
• Train employees responsible for investigating
  incidents of harassment

35
RESOURCES

• Resources for addressing sexual harassment
  http//www.ed.gov/ocr/sexharassresources.html
• Guidance on grievance procedures
  www.ed.gov/ocr/prevention.html

36
RESOURCES, contd.

• The Safe and Drug Free Schools Program at the
  U.S. Department of Education www.ed.gov/osdfs/inde
  x.html

37
RESOURCES, contd.

• Dept. of Justice Community Relations Service -
  www.usdoj.gov/crs/ and the Office of Victims of
  Crimes - www.ojp.usdoj.gov/ovc/help/hbc.htm
• Equal Employment Opportunity Commission
  -www.eeoc.gov/docs/harassment.html

38
RESOURCES, contd.

• Regional Equity Centers
• Provide assistance, including training, to public
  schools to promote equal educational
  opportunities
• Southeast Equity Center
• http//www.southeastequity.org

39
RESOURCES, contd.

• Office for Civil Rights
• U.S. Department of Education
• P.O. Box 14620, Washington DC 20044-4620
• 202 786 0500
• http//www.ed.gov/ocr