DISCRIMINATION HARASSMENT MIAMIDADE COUNTY PUBLIC SCHOOLS CIVIL RIGHTS

DISCRIMINATION/ HARASSMENT MIAMI-DADE COUNTY PUBLIC SCHOOLS CIVIL RIGHTS COMPLIANCE OFFICE MADELEINE RODRIGUEZ EXECUTIVE DIRECTOR FEBRUARY 2016

Discrimination/Harassment What is Discrimination? Discrimination – the action a person takes to deprive another individual or group of a right because of prejudice involving: color, race, national origin, religion, or sex.

Discrimination/Harassment Issues Tied to Discrimination v Discharge v Failure to Promote v Failure to Hire v Wages v Suspension v Terms and Conditions v Harassment

Discrimination/Harassment Age* Race* Color* Ethnic/National Origin* Disability* GINA* Religion* Sex/Sexual Harassment* Pregnancy* Marital Status Political Beliefs Social/Family Background Sexual Orientation Gender Identity/ Expression Linguistic Preference Transgender Status (considering) Retaliation* -Filing a complaint -Participating in a complaint

Discrimination/Harassment Title VII of the Civil Rights Act of 1964 Prohibits employment discrimination on any of the following bases: Race Color Religion/Creed National Origin Sex/Sexual Harassment Retaliation

Discrimination/Harassment AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as amended (ADEA) Protects employees 40 years of age and older from employment discrimination Employee must be qualified to perform the job Discrimination can be found even if both the employee and the decision make are in protected class

Discrimination/Harassment AMERICANS WITH DISABILITIES ACT of 1990, as amended (ADA) Prohibits employers from discriminating against qualified individuals with disabilities in: job applications procedures hiring, firing advancement, compensation job training, and other terms, conditions, and privileges of employment

Discrimination/Harassment An individual with a disability is a person who: Has a physical or mental impairment that substantially limits one; or more major life activities; or Has a record of such an impairment; or Is regarded as having such an impairment.

Americans with Disabilities Act (ADA) Reasonable Accommodation Modifications or adjustments to; 1. A job application process 2. The work environment 3. Allow individuals to enjoy equal benefits and privileges of employment Qualified Individual with a Disability Person who satisfies the requisite; 1. skill, 2. experience, 3. education, 4. other related requirements and can perform the essential functions of the job with or without reasonable accommodation Essential Functions Direct Threat Undue Hardship The fundamental duties of the position A significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation An action requiring significant difficulty or expense

Discrimination/Harassment Making existing facilities accessible Restructuring job duties Allowing part-time or modified work schedules Acquiring or modifying furniture and equipment Changing tests, training materials, or policies Providing qualified readers or interpreters

Discrimination/Harassment Family Medical Leave Act (FMLA) Employees are eligible for FMLA leave if they: • Have been employed by a "covered“ employer for at least 12 months, which need not be consecutive; and • Had at least 1, 250 hours of service during the 12 -month period immediately before the leave started.

FMLA (cont’d) An eligible employee may take up to 12 workweeks of unpaid leave during any 12 -month period for one or more of the following reasons: • The birth and care of a child; • Placement of child through adoption or foster care; • Care for the employee’s spouse, son, daughter, or parent with a serious health concern; or • Serious health condition makes the employee unable to perform one or more of the essential functions of the job.

FMLA (cont’d) During FMLA leave, an employer must maintain the employee's existing level of coverage under a group health plan. At the end of FMLA leave, an employer must take an employee back into the same or an equivalent job.

Discrimination/Harassment Religion – Religious discrimination involves treating a person (applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, but also others who have sincerely held religious, ethical or moral beliefs. Can also involve treating someone differently because that person is married to (or associated with) and individual of a particular religion

Discrimination/Harassment Religion The law forbids discrimination when it comes to any aspect of employment, including, firing, pay, job assignments, promotions, lay offs, training, or any other term or condition of employment.

Discrimination/Harassment Religion–Reasonable Accommodations The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the business. This means that the employer may be required to make reasonable adjustments to the work environment.

Discrimination/Harassment Example of reasonable accommodations: Flexible scheduling Voluntary shift substitutions or swaps, Job reassignments, Modifications to workplace policies or practices

Discrimination/Harassment Undue Hardship An employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. Undue hardship – too costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Discrimination/Harassment SEXUAL HARASSMENT

Discrimination/Harassment Sexual harassment is a form of sex discrimination that violates Title VII, The Florida Civil Rights Act, Miami-Dade County Ordinance, and Organizational Policies. Sexual harassment is defined as unsolicited, unwelcome… � sexual advances, � requests for sexual favors, and � other verbal or physical conduct or offensive conduct of a sexual nature.

Discrimination/Harassment Quid Pro Quo Latin term meaning this for that Conduct where a supervisor, employee, or someone with the ability to affect the victim’s terms and conditions of the employment demands sexual favors in return for job security or other benefits. Sexual Favoritism can occur where an employee is granted employment benefits because he or she submits to requests for sexual favors from supervisor and other co-workers were denied employment benefits because they did not submit to sexual favors.

Discrimination/Harassment Hostile Work Environment “A hostile work environment is created when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the [Complainant’s] employment and create an abusive working environment. ” -EEOC Compliance Manual Employer liability and potential damages may be reduced or avoided if the employer establishes and disseminates a policy and reporting procedure and the employer takes reasonable care to prevent and promptly correct harassment.

Discrimination/Harassment The EEOC will consider the following factors in determining whether an environment is hostile: 1. Whether the conduct was verbal, physical or both 2. How frequently it was repeated 3. Whether the conduct was hostile or offensive 4. Whether the alleged harasser was a co-worker or supervisor 5. Whether others joined in perpetrating the harassment 6. Whether the harassment was directed at more than one individual

Discrimination/Harassment Examples of behaviors that may lead to charges of sexual harassment Pressures for sexual favors or dates Massages, touching, leaning over, cornering, pinching Inappropriate hand or body gestures Messages with sexual content Asking about sexual preferences, fantasies, sex life at home Sexual looks Sexual comments about clothing or anatomy Sexual sounds or whistling Rumors about a person’s sex life Inappropriate sexual gifts Kissing, hugging or brushing against a person

Discrimination/Harassment Sexual Harassment can occur in a variety of circumstances, including but not limited to, the following: – The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. – The harasser can be a supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. – The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Discrimination/Harassment RETALIATION It is illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit). For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.

Discrimination/Harassment Consequences of discrimination may include: � Poor staff morale � Lessened productivity � Tension in the workplace � Administrative, civil, and criminal liabilities may be imposed on employees, � � � supervisors, and/or agencies Negative perception of the agency within the community Negative impact on recruitment Excessive media attention Underrepresented members of classes of employees Potential loss of federal grants and funding

Discrimination/Harassment by Non-Employees Employers can be held liable for the sexual harassment of employees by: Visitors Consultants Vendors Volunteers Contractors Others

TITLE IX Civil Rights for Students Under Title IX of the Education Amendments of 1972 The Importance of Following Procedures Cristina Rivera Correa Assistant School Board Attorney February 2016

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 any education program or activity receiving Federal financial assistance. ” 20 U. S. C. S. § 1681(a)

School Board Policy 5517 The Board will vigorously enforce its prohibition against discrimination/harassment based on sex, race, color, ethnic or national origin, religion, marital status, disability, age, political beliefs, sexual orientation, gender identification, social and family background, linguistic preference, pregnancy, and any other basis prohibited by law. Title IX prohibits sexual harassment and other sexual misconduct such as unwelcome touching, graphic verbal comments, sexual jokes, slurs, gestures or pictures. All students, administrators, teachers, staff, and all other school personnel share responsibility for avoiding, discouraging, and reporting any form of prohibited discrimination or harassment against students by employees, other students and their parents or guardians, or third parties. Retaliation against anyone for engaging in a protected activity such as filing a complaint or participating in a complaint investigation is also prohibited.

Title IX Liability Sexual Harassment by a Teacher Can be established when an official of the school district who, at a minimum has authority to institute corrective measures on the district’s behalf, has actual notice of, and is deliberately indifferent to the teacher’s misconduct Gebser v. Lago Vista Independent School District, 524 U. S. 274 (1998) Sexual Harassment by a Student In certain limited circumstances, deliberate indifference to known acts of harassment amounts to an intentional violation of Title IX capable of supporting a private damages action even when the harasser is a student rather than a teacher. But only if the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victim(s) of access to educational opportunities or benefits of the school. Davis v. Monroe County Board of Education, 526 U. S. 629 (1999)

Office for Civil Rights Position OCR has said that the standard for notice of student on student harassment is… “knew or should have known” Recommended reading: Dear Colleague Letter (OCR 2010) http: ///www 2. ed. gov/about/offices/list/ocr/letters/colleague-201010. html

Deliberate Indifference What does it mean to be deliberately indifferent? Courts consider whether the following types of actions were taken: Responding to each report of misconduct received Investigating the allegations Interviewing relevant parties and witnesses Obtaining written statements Warning the alleged harasser Applying penalties to the alleged harasser Implementing remedial measures Monitoring conduct of the alleged harasser Recommending retention Making a report to the district’s Title IX Coordinator

School Board Policy 5517. 02 The PRINCIPAL must be careful to understand the policy and follow the procedures The PRINCIPAL is considered high enough on the chain of command to impute liability to the School Board Doe v. School Board of Broward County, Fla. , 604 F. 3 d 1248 (11 th Cir. 2010)

School Board Policy 5517. 02 Important Procedures Complaint Procedures Students/parents are encouraged to promptly report complaints of discriminatory or harassing conduct to their Principal. A student/parent may also file the complaint directly with the Region Office or the District’s Office of Civil Rights Compliance (CRC). In order to conduct a thorough investigation, complaints must be reduced to writing. The complainant and the subject of the complaint shall be provided an opportunity to present witnesses and other evidence relevant to the complaint.

School Board Policy 5517. 02 Important Procedures (cont’d) Anonymous complaints shall not be processed without first attempting to ascertain the identity of the complainant, except as outlined in Policy 5517. 01. If after such efforts, the complainant remains anonymous, the investigation will proceed. The Principal or the CRC Office will assist the complainant in reducing verbal complaints to writing and encourage the complainant to sign attesting that it is true to the best of the complainant’s knowledge, information, and belief. Under Federal guidelines, complaints must be filed within 180 calendar days of the date of the last act of alleged discrimination.

School Board Policy 5517. 02 Important Procedures (cont’d) Processing Complaints All complaints involving student to student harassment, including sexual harassment, will be first investigated at the school site. If such complaints are made directly to the Region Office or the CRC Office, they will be routed to the school site for the initial investigation. Complaints involving harassment, including sexual harassment, of a student by an employee or other representatives of the school system will be investigated by the CRC Office.

School Board Policy 5517. 02 Important Procedures (cont’d) Principals are required to: 1. receive and document the complaint and notify the CRC Office within 24 hours of receiving the complaint; for verbal complaints, assist the complainant in reducing the complaint to writing and encourage the complainant to sign attesting that it is true to the best of the complainant’s knowledge, information, and belief; 2. provide a copy of this Policy 5517. 02 to the complainant; 3. meet with the complainant (student/parent) to ascertain the facts pertinent to the allegations; 4. meet with the student(s) accused of the alleged harassment to obtain a response to the complaint both orally and in writing;

School Board Policy 5517. 02 Important Procedures (cont’d) 5. meet with all witnesses identified by the person(s) making the report of harassment and the subject of the complaint, individually and confidentially. Witnesses will be asked to make a statement both orally and in writing regarding the alleged facts that form the basis of the complaint; 6. document all reports and interventions on the appropriate student case management forms within 10 workdays; Upon completion of the investigation, any student(s) found to have violated this policy will be subject to any of the disciplinary actions described in the Code of Student Conduct and coded on the appropriate Student Case Management Form; *The principal shall contact Miami-Dade County Schools Police in accordance with the Code of Student Conduct.

School Board Policy 5517. 02 Important Procedures (cont’d) 7. provide parents of complainant and of the subject of the complaint with a written notification of the outcome of the investigation in accordance with student confidentiality requirements. Absent unusual circumstances, the written report of the investigation will be provided within 10 workdays of reaching a final determination; and 8. notify the CRC Office concurrently in writing of the outcome of the complaint. If the complaint is made directly to a school staff member other than the Principal, they shall immediately refer the complaint to the Principal.

Importance of Following Procedures Take complaints of sexual harassment against students seriously Investigate every allegation Document your steps Document your findings If you find inappropriate activity, take corrective measures Utilize Policy 5517. 02 Utilize the PIM process Contact CRC if you have concerns

Help Prevent Discrimination & Harassment of Students For additional information about Title IX or any other discrimination/harassment concerns contact: Office of Civil Rights Compliance (CRC) Executive Director/Title IX Coordinator 155 N. E. 15 th Street, Suite P 104 E Miami, FL 33132 Phone: (305) 995 -1580/Fax: (305) 995 -2047 Email: crc@dadeschools. net/ Website: httip: //crc. dadeschools. net/ The School Board Attorney’s Office 1450 N. E. 2 nd Avenue, Suite 430 Miami, FL 33132 Phone: (305) 995 -1304/Fax: (305) 995 -1412 Email: cristinarivera 2@dadeschools. net Website: http: //attorneys. dadeschools. net/