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 school’s 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 student’s ability to participate in or receive the benefits, services or opportunities of the school’s program

7. SEXUAL CONDUCT DEFINED • Conduct of a sexual nature includes: • Requests for sexual favors • Comments about someone’s 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 • OCR’s 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 student’s ability to participate in or benefit from the program

14. EMPLOYEE HARASSMENT, cont’d. • An employee (acting in the context of his/her responsibilities): • explicitly or implicitly conditions a student’s participation in an education program or activity, or • bases an educational decision on the student’s 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 student’s ability to participate in or benefit from the school’s 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. SCHOOL’S 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, cont’d. • 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, cont’d. • 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 • Investigator’s role is as independent fact-finder • Knowledgeable • Neutral • Culturally sensitive

25. INVESTIGATIVE STRATEGIES, cont’d. • 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, cont’d. • 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 school’s policy protects against retaliation

28. INVESTIGATIVE STRATEGIES, cont’d. • 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, cont’d. • 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 complainant’s 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, cont’d. • 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, cont’d. • The Safe and Drug Free Schools Program at the U.S. Department of Education www.ed.gov/osdfs/index.html

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

39. RESOURCES, cont’d. 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