1. Sexual Harassment Awareness & Overview of the Dignity for All Students Act (“DASA”) McGraw Central School District David V. Cirillo, Esq. Assistant Director of Personnel and Labor Relations OCM BOCES Office of Personnel and Labor Relations September 4, 2012

2. Sexual Harassment Topics Potential Impact What is Sexual Harassment? Supreme Court Decisions McGraw CSD Policy: Purpose and Prohibitions Is it Sexual Harassment?

3. Potential Impact of Sexual Harassment Expensive and lengthy litigation Employer liability Personal liability Termination of employment

4. Potential Impact of Sexual Harassment Poor morale among employees and students Higher employee turnover and student dropout rates Increased absenteeism of employees and students Lower productivity by employees in the workplace and by students in the classroom

5. 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 educational program or activity receiving Federal financial assistance.” Volume 20 U.S.C. Section 1681

6. What is Sexual Harassment? Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature. Two forms: Quid Pro Quo Hostile Work Environment

7. What is Sexual Harassment? Quid Pro Quo When submission is made an explicit or implicit term or condition of an employee’s employment or a student’s education, or When submission or rejection is used as a factor in decisions affecting an employee’s employment or a student’s education.

8. What is Sexual Harassment? Hostile Work Environment The conduct has the effect of substantially or unreasonably: 1.Interfering with an employee’s work performance or a student’s academic performance or participation in school activities, or…

9. What is Sexual Harassment? Hostile Work Environment 2.Creating an intimidating, hostile, or offensive working or educational environment. The conduct must be sufficiently severe, pervasive and objectively offensive to a reasonable person.

10. What is Sexual Harassment? Hostile Work Environment Examples Verbal Non-Verbal Physical

11. Hostile Work Environment Examples Verbal Jokes Slurs Suggestive comments Threats Requests for Sexual Favors What is Sexual Harassment?

12. Hostile Work Environment Examples Non-Verbal Displaying pornographic/obscene images Whistling Sexually suggestive gestures or motions Use of District email to send sexually suggestive/graphic material Staring What is Sexual Harassment?

13. Hostile Work Environment Examples Physical Sexual Assault Petting, pinching, grabbing, holding, hugging, kissing, tickling, massaging, exposing body parts What is Sexual Harassment?

14. “Unwelcome” Behavior Behavior is “unwelcome” if the student or employee did not request or invite it and regarded it as undesirable and offensive. “Unwelcomeness” is presumed in adult-to-student quid pro quo cases. What is Sexual Harassment?

15. Retaliation Any act of retaliation against persons who oppose sexual harassment, who file a complaint, who are witnesses, or who assist or participate in an investigation is prohibited and illegal. Retaliation includes but is not limited to threats, intimidation, ridicule, bribes, destruction of property, spreading rumors, stalking, harassing phone calls, or any other form of harassment. What is Sexual Harassment?

16. SUPREME COURT DECISIONS

17. Meritor Savings Bank v. Vinson (1986) Held that “sufficiently severe and pervasive” conduct of a sexual nature creates a hostile work environment. Established that harasser conduct “unwelcome” to the victim establishes a violation.

18. Franklin v. Gwinnett County Public Schools (1992) A teacher harassed a female student from the beginning of her sophomore year to the spring of her junior year. He would ask her about her sexual experiences and if she would ever consider having sex with an older man. On several occasions he forcibly kissed her, removed her from other classes and took her to his office. Teachers and administrators knew about the harassment but did nothing to stop it. Holding: Establishes that a school district can be held liable in damages under Title IX where an employee sexually harasses a student.

19. Gebser v. Lago Vista ISD (1998) Established parameters of school district liability in sexual harassment cases. Holding: Schools can be held liable for employee-to- student sexual harassment if a responsible school official (one with authority to take corrective action) had actual knowledge of, and was deliberately indifferent to, the harassment.

20. Davis v. Monroe County BOE (1999) Extended recovery of damages under Title IX to student-on-student sexual harassment. Holding: A school board may be liable for student-to-student harassment if it: (1) has actual knowledge of the harassment; and (2)was deliberately indifferent to the sexual harassment.

21. Harris v. Forklift Systems, Inc. (1995) A female employee was hired as a rental manager at a company. She was continually mocked and ridiculed with dirty jokes, lewd comments, and sexual innuendo by the president of the company. Holding: Harassment need not cause psychological harm or other injury to the victim. Victim may recover damages if conduct is reasonably perceived as abusive or hostile.

22. Jackson v. Birmingham BOE (2005) Title IX protects from retaliation employees who bring complaints on behalf of others.

23. McGraw Central School District Sexual Harassment Policies Policy # 3000: Prohibits Discrimination and Harassment. Policy # 6000: Prohibits Sexual Harassment. What is the purpose of the District’s policies? What do the policies prohibit?

24. What is the purpose of the District’s policies? The policies recognize that: Board is committed “to non-discrimination and recognizes its responsibility to provide an environment that is free of harassment and intimidation as required by Federal and State law.” “…recognizes its responsibility to provide… an environment that is free of sexual harassment, including sexual violence. Sexual harassment including sexual violence is a violation of law and stands is direct opposition to District policy”

25. What do the policies prohibit? “The Board prohibits and condemns all forms of discrimination and harassment on the basis of race, color, creed, religion, national origin, political affiliation, sex, sexual orientation, age, marital status, military status, veteran status, disability, use of a recognized guide dog, hearing dog or service dog, or domestic violence victim status...” “The Board prohibits and condemns all forms of sexual harassment..” Applies to employees, volunteers, students, contractors and vendors.

26. Title IX Compliance Officer: Mary Curcio (607) 836-3636 McGraw Central School District

27. Is it sexual harassment? For the past year, an employee has been subjected to daily fondling by her supervisor against her will.

28. Is it sexual harassment? An employee likes to tell sexually-explicit jokes at team meetings. A co-worker tells him she finds his jokes offensive and asks him to stop. He stops.

29. Is it sexual harassment? In the Transportation garage, the mechanics, all male, constantly use foul language and frequently whistle and hoot at female bus drivers. One driver complains to her supervisor but the supervisor takes no action.

30. Is it sexual harassment? A male student is drunk at the prom and exposes himself to two female students. The next day he is extremely embarrassed and apologizes profusely to the female students.

31. Dignity for All Students Act Education Law § 10 et al already prohibits discrimination and harassment of students in public schools Amended law specifically prohibits bullying and cyberbullying Requires the District to adopt policies and procedures designed to create a school environment free from such conduct Effective July 1, 2013

32. “No student shall be subject to harassment or bullying by employees or students on school property or at a school function…” Dignity for All Students Act

33. Harassment and bullying is defined as the creation of a hostile environment by conduct or by threats, intimidation or abuse that (a)Unreasonably and substantially interferes with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well- being… Dignity for All Students Act

34. (b)reasonably causes or would be expected to cause a student to fear for his or her physical safety; (c)reasonably causes or would be expected to cause physical injury or emotional harm to a student; or (d)occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, and where it is foreseeable that the conduct might reach school property. Dignity for All Students Act

35. Acts of harassment and bullying include acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender or sex. Dignity for All Students Act

36. Reporting Obligations of School Employees under Dignity Act Who is required to report instances of harassment, bullying or discrimination to the District? All school employees who witness harassment, bullying or discrimination, or who receive an oral or written report of harassment, bullying or discrimination

37. Reporting Obligations of School Employees under Dignity Act When to report? Must promptly orally notify designated school official “not later than one school day after such employee witnesses or receives a report of harassment, bullying or discrimination;” and Must file a written report with the designated school official not later than two school days after making the oral report.

38. Reporting Obligations of School Employees under Dignity Act Board policy will identify designated school official

39. Dignity for All Students Act Retaliation Act prohibits retaliation against any individual who, in good faith, reports, or assists in the investigation of, harassment, bullying or discrimination

40. Questions? David V. Cirillo, Esq. dcirillo@ocmboces.org (315)433-2629 dcirillo@ocmboces.org Questions? David V. Cirillo, Esq. dcirillo@ocmboces.org (315)433-2629 dcirillo@ocmboces.org