1. Sexual Harassment Awareness & Overview of the Dignity for All Students Act (“DASA”) Tully Central School District David V. Cirillo, Esq. Assistant Director of Personnel and Labor Relations OCM BOCES Office of Personnel and Labor Relations September 3, 2015

2. Sexual Harassment Awareness

3. Sexual Harassment Topics Potential Impact What is Sexual Harassment? Supreme Court Decisions Tully CSD Policy: Purpose and Prohibitions Is it Sexual Harassment? 3

4. Potential Impact of Sexual Harassment Expensive and lengthy litigation Employer liability Personal liability Termination of employment 4

5. 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

6. 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

7. “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? 7

8. 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 8

9. 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. 9

10. 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… 10

11. 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. 11

12. 1 in 4 women experience sexual harassment on the job 1 in 8 sexual harassment claims are from men 47% of teenage girls have been touched against their will at work or school The majority of sexual harassment complaints stem from inappropriate behavior by co-workers or fellow students rather than by supervisors or teachers Sexual Harassment Statistics

13. Supervisor Co-Workers Non-Employees Students Harassing conduct could be committed by anyone conducting business at the district Supervisor  EmployeeEmployee  Supervisor Employee  Non-EmployeeNon-Employee  Employee Employee  StudentStudent  Employee Student  Student Co-Worker  Co-Worker Who Commits Harassment?

14. What is Sexual Harassment? Hostile Work Environment Examples Verbal Non-Verbal Physical 14

15. Terms of endearment, i.e. “Hunk”, “Girl”, “Doll”, “Babe”, “Honey”, etc. Noises, i.e. whistling, catcalls, kissing sounds, howling, smacking lips, etc. Comments on body, clothes, looks, manner of walking, anatomy, or spreading rumors about a person’s sex life Discussions –Turning work discussions to sexual topics –Discussing one’s love life –Asking about sexual fantasies, preferences, or history –Holding intimate discussions with one’s romantic partner within earshot of co-workers Repeatedly asking a person for a date who is clearly not interested Verbal Harassment Examples

16. Elevator eyes and/or staring Blocking a person’s path or following a person around Facial expressions, i.e. winking, throwing kisses or licking lips or other sexual gestures with one’s tongue, hands or other body movements Giving unwanted personal gifts Displaying sexually-suggestive visuals, such as calendars, pictures, comics, food displays Non-Verbal Harassment Examples

17. Giving a neck or shoulder rub Touching a person’s body, hair or clothing with a body part or object Hugging, kissing or patting another Standing too close to, or brushing up against a person Touching or rubbing oneself in a private area or with sexual overtones Touching, leaning over, cornering or pinching someone Physical Harassment Examples

18. Use of the computer to send and/or receive pornography or sexually suggestive material Use of the District’s network for storage of such information Use of the District’s printers to distribute information Use of e-mail for such purposes Misuse of District Technology

19. Would you feel comfortable making the same statement(s) to the Superintendent or the BOE? Would you like to see your remarks quoted in the newspaper? How would you feel if someone else said the same thing to you, your spouse or child? Preventing Harassing Situations

20. “We’re like family - we don’t have sexual harassment problems!” “Everyone here likes to joke around - why do we need this policy?” “Talking about this issue will only make it more difficult to work together!” “Why do we need to conduct training? That will only make people file complaints.” Common Pitfalls or Problems

21. None of these factors is decisive by itself. An investigator needs to examine the entire context: Was the conduct verbal, physical or both? How frequently was it repeated? Was the conduct hostile or offensive? Was the alleged harasser a co-worker or a supervisor? Did others join in perpetrating the harassment? Was the harassment directed at more than one individual? Did the complainant participate in the exchange? Factors Used to Determine Harassment

22. Oral or Written Warning/Reprimand Transfer or Reassignment Suspension (Students or employees) Discharge Training/Counseling to Understand Violation Monitoring the situation to prevent retaliation Apology Measures to Stop Harassment

23. 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? 23

24. SUPREME COURT DECISIONS 24

25. 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. 25

26. 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. 26

27. 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. 27

28. 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. 28

29. 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. 29

30. Jackson v. Birmingham BOE (2005) Title IX protects from retaliation employees who bring complaints on behalf of others. 30

31. Tully Central School District Sexual Harassment Policy Policy # 3420: Prohibits Discrimination and Harassment. What is the purpose of the District’s policy? What does the policies prohibit? 31

32. 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” 32

33. 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. 33

34. The Title IX 504/ADA Compliance Officer: Mrs. Mary Ann Murphy The Title IX 504/ADA Coordinator Mrs. Debora M. Cox Tully Central School District 34

35. Is it sexual harassment? For the past year, an employee has been subjected to daily fondling by her supervisor against her will. 35

36. 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. 36

37. 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. 37

38. 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. 38

39. Dignity for All Students Act (“DASA”) Overview

40. 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 40

41. “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 41

42. Harassment and bullying are 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 42

43. (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 43

44. “Cyberbullying” includes the use, both on and off school property, of any form of electronic communication to deliberately harass or threaten others. –i.e. email, instant messaging, blogs, chat rooms, pagers, cell phones, gaming systems and social media websites. Dignity for All Students Act 44

45. 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 45

46. 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 46

47. 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. 47

48. Reporting Obligations of School Employees under Dignity Act Dignity for All Students Act Coordinators Jr. – Sr. High School –Mr. Paul Schiener: pschiener@tullyschools.org Elementary –Mrs. Debora Cox: dcox@tullyschools.org 48

49. Tully Central School District Dignity For All Students Act Policy Policy # 7554: Prohibits all forms of Bullying, Discrimination and/or Harassment. What is the purpose of the District’s policy? What does the policy prohibit? 49

50. What is the purpose of the District’s policies? The policy recognizes that: “…learning environments that are safe and supportive can increase student attendance and improve academic achievement. A student’s ability to learn and achieve high academic standards, and a school’s ability to educate students, is compromised by incidents of discrimination or harassment, including by not limited to bullying, taunting and intimidation.” 50

51. What does the policies prohibit? “The District condemns and prohibits all forms of discrimination and harassment of students based on actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property and at school-sponsored activities and events that take place at locations off school property. In addition, any act of discrimination or harassment, outside of school sponsored events, which can reasonably be expected to materially and substantially disrupt the education process may be subject to discipline.” 51

52. Dignity for All Students Act Retaliation DASA prohibits retaliation against any individual who, in good faith, reports, or assists in the investigation of, harassment, bullying or discrimination 52

53. 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 53