METOO DISCRIMINATION SEXUAL HARASSMENT WORKPLACE HARASSMENT January 6

#METOO DISCRIMINATION, SEXUAL HARASSMENT & WORKPLACE HARASSMENT January 6, 2019 Andrea Schiers, Attorney Spencer Lewis, Attorney Oregon School Boards Association/PACE

Agenda • • • January 6, 2019 Definitions Discrimination Sexual Harassment Workplace Harassment Practical Advice

Discrimination in Education • “’Discrimination’ means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, religion, sexual orientation, national origin, marital status, age or disability. ” ORS 659. 850(1)

Discrimination in Education • “A person may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity…” ORS 659. 850(2)

Discrimination in Employment • “It is an unlawful employment practice… for an employer, because of an individual’s race, color, religion, sexual orientation, national origin, marital status or age… or because of a individual’s juvenile record that has been expunged… to refuse to hire or employ the individual or to bar or discharge the individual from employment… to discriminate against the individual in compensation or in terms, conditions or privileges of employment. ” ORS 659 A. 030

Sexual Harassment in K-12 Education • Sexual harassment includes: – A demand or request for sexual favors in exchange for benefits; – Unwelcome conduct of a sexual nature that is physical, verbal or nonverbal and that interferes with an individual’s situation or that creates an intimidating, offensive or hostile environment; and – Assault when sexual contact occurs without victim consent because the victim is under the influence of drugs or alcohol, is unconscious or is pressured through physical force, coercion or explicit or implied threats. ORS 342. 704*

Sexual Harassment in K-12 Education • Sexual harassment can be conduct directed towards students, staff and/or third parties. ORS 342. 704* * HB 3077(2019), effective July 1, 2020.

Workplace Harassment • “Conduct that constitutes discrimination prohibited by ORS 659 A. 030, including conduct that constitutes sexual assault or that constitutes conduct prohibited by ORS 659 A. 082 [uniformed service discrimination] or 659 A. 112 [employment discrimination]. ” ORS 243. * * HB 479(2019)

Workplace Harassment • “…workplace harassment that occurs between employees or between an employer and an employee in the workplace or at a work-related event that is off the employment premises and coordinated by or through the employer, or between an employer and an employee off the employment premises. ” ORS 243. * * HB 479(2019)

DISCRIMINATION SEXUAL HARASSMENT WORKPLACE HARASSMENT

EMPLOYMENT CONTEXT WORKPLACE HARASSMENT DISCRIMINATION SEXUAL HARASSMENT

“Harassment based on an individual’s protected class is a type of intentional unlawful discrimination. ” OAR 839 -005 -0010(4)

DISCRIMINATORY HARASSMENT

Discrimination

Protected Classes • • Race Color Religion Sexual Orientation National Origin Injured Workers Filed Complaints • • Marital Status Age Disability Pregnancy Veteran Status Uniformed Service Expunged Juvenile Record Protected Activity

Common Discrimination Issues • • Equity Parent-friendly workplace Disability Accommodations Handling Harassment Claims

A female IA was hired three years ago and currently makes $13. 50/hr. The district just hired a male IA, and because IAs are difficult to find right no, offered him $14. 50/hr. IS THIS DISCRIMINATION? Likely. Any difference in compensation for work of comparable character must be based on one or a combination of the following: • • Seniority Merit Quantity/quality of production Location • • Travel Education Training Experience

A HS teacher recently had a baby and needs to express milk during the day. The teacher’s prep period is during the afternoon, so the teacher isn’t able to pump in the morning. IS THIS DISCRIMINATION? Yes. “The employer shall provide the employee a reasonable rest period to express milk each time the employee has a need to express milk. ” ORS 653. 077 (HB 2593 (2019))

A teacher reported sexual comments from another teacher to the principal. The principal spoke with the teacher, but the conduct continues and the principal refuses to take action. IS THIS DISCRIMINATION? Yes. Failure to protect an individual or a group from the conduct of others can be considered discrimination.

Actions Upon Receipt of Complaint • • • Policy AC and AC-AR Follow procedures, including timelines Investigate Protect the victim Written decision Can be appealed to State Board

What Can We Do Now? • • • Make sure policies are up to date Check handbooks and other materials Train staff Follow procedures Document

Sexual Harassment

Sexual Harassment • Demands or requests for sexual favors; • Unwelcome sexual conduct (including verbal) that interferes or creates intimidating, offensive or hostile environment; • Sexual assault when victim is incapable of consent (drugs or unconscious) or forced, coerced or threatened. • Actions by students or staff that impact students, staff or third parties.

A student draws a picture that is sexual in nature on the wall in a classroom. IS THIS SEXUAL HARASSMENT? Yes. Unwelcome sexual conduct (nonverbal) that interferes with educational environment or creates an offensive environment.

Two employees are alone in the break room and are talking about a sex scene in a movie they recently saw. Another employee overheard the conversation. IS THIS SEXUAL HARASSMENT? Yes. Unwelcome sexual conduct (verbal) that interferes with staff member’s ability to do their job or creates an offensive environment.

At a school sporting event, a community member ridicules the referee by using sexual innuendos related to the referee’s gender and actions. IS THIS SEXUAL HARASSMENT? Technically, under the statutory definition, no. The statute includes harassment of third parties, but only refers to actions “by staff members and students. ” However, this conduct is still inappropriate, and the district should react appropriately (see discrimination and HB 3409 (2019)).

A district recently had an employee openly transition from one gender to another. The district is allowing the individual to use the restrooms consistent with their gender identity. A student wears a shirt that states “I disagree with the district’s transgender practices. ” IS THIS SEXUAL HARASSMENT? Probably not sexual harassment under this definition. Could rise to discrimination, bullying and/or harassment. Could be protected speech.

Common Myths About Sexual Harassment • • • Must be male to female. Must be from supervisor to subordinate. If it is intended as a joke, it cannot be harassment. If no one asks me to stop, I can keep doing it. If it is off-duty, it cannot be harassment. If they weren’t the intended recipient, they can’t complain.

Policy Requirements (GBN/JBA) • • • Applies to all staff and students Definitions, including 3 P application Written response to complainants Mandatory report to district officials (for staff members) Protect victim and provide resources Promote nonhostile environment

Policy Requirements (GBN/JBA) • All complaints will be investigated • No retaliation for complainant or investigation participants • Written notice to complainant upon investigation start and finish Policy will be updated in Spring 2020.

Written Notice Requirements • Rights of student, parents, staff member or third party • Information about complaint process, including designated person • Notice of civil and criminal remedies • Information about district-offered resources • Information about state- and community-provided services and resources

Written Notice Requirements • • • Information about privacy rights Notice of no retaliation Plain language Readable color, size and font Available at district office and on website

Actions Upon Receipt of a Complaint • • Policy GBN/JBA and AR Follow procedures, including timelines Provide notifications Investigate Protect the victim Written decision Likely can be appealed to State Board

What Can We Do Now? • • • Prepare for policy update Identify resources available Prepare draft written notices Make procedures available on website Train staff

Sexual Harassment in Community Colleges? • Review policies and procedures for steps • Other state and federal laws still apply • Follow Workplace Harassment requirements

WORKPLACE HARASSMENT

Workplace Harassment • • SB 479, SB 726 (2019) Multiple effective dates BOLI still writing rules New policy, GBEA (November 2019)

Workplace Harassment • “Conduct that constitutes discrimination prohibited by ORS 659 A. 030, including conduct that constitutes sexual assault or that constitutes conduct prohibited by ORS 659 A. 082 [uniformed service discrimination] or 659 A. 112 [employment discrimination]. ” ORS 243. * * HB 479(2019)

Policy Requirements (GBEA) • Statement prohibiting workplace harassment • Victim can seek redress through employer’s internal procedure, BOLI or other legal remedy(timelines, available remedies, tort claim notice) • Retaliation protection • Scope of policy (elected officials, volunteers, interns) • Victim may voluntarily disclose

Policy Requirements (GBEA) • Resources available • Limitations on nondisclosure and nondisparagement agreements • Statement advising documentation • Identify designated recipient of claims • Include statute of limitations • Reporting process

Policy Requirements (GBEA) • Must provide policy: – To each employee – Part of orientation materials – Upon receipt of complaint or concerns

Investigation Requirements • • • May be in policy Records maintenance Complaint process (allows at least four years to file) Designate employee to receive reports Follow up with victim every three months Inform victim of follow up

Actions Upon Receipt of a Complaint • • Policy GBEA Provide complainant with copy of policy Follow procedures, including timelines Investigate Protect the victim Arrange for follow ups Likely can be appealed to State Board

An employee reports that another employee repeatedly mocks the employee for religious clothing. IS THIS WORKPLACE HARASSMENT? Yes. OAR 839 -005 -0010(4)(f)

OAR 839 -005 -0010(4)(e)(B)

An employee just returned from ten weeks of OFLA leave. Another employee repeatedly makes comments that this employee is not pulling their weight and complains of the added work due to the leave unnecessarily being taken. IS THIS WORKPLACE HARASSMENT? Depends. Does the employer know about this conduct? Are there reasonable procedures that are followed?

PRACTICAL ADVICE

Practical Advice • • Update policies, handbooks, procedures, etc. Follow your procedures Train staff When you get a complaint, take the time to identify what type of complaint it is and outline next steps • Get assistance when needed • Expect updates

Questions PACE Legal Services (503) 485 -4800 pacelegal@osba. org ?