LEGAL ONE Presents:Affirmative Action

Presented by:David Nash, Esq.

5/4/12

Understand legal requirements related to affirmative action, including responsibility to protect students and adults from sexual harassment and other forms of discrimination

Understand the relationship between affirmative action and other statutory requirements, including HIB, teen dating violence, equity in education

GOALS

Overview of statutory requirements related to affirmative action, protection from discrimination

Review of basic scenario on sexual harassment

Overview of HIB, dating violence statutes Review of scenarios on sexual harassment,

employment discrimination/retaliation, bullying, teen dating violence

Summary / Q & A

Organization of Program

Title IX Title VII of the Civil Rights Act IDEIA Section 504 Americans with Disabilities Act New Jersey Law Against Discrimination New Jersey’s Anti-Bullying Bill of Rights New Jersey Teen Dating Violence Prevention Statute DYFS CEPA – Conscientious Employee Protection Act

(Whistleblower Law)

Major Statutes

School Districts must:

Disseminate a notice of nondiscrimination;

Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and

Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.

District Obligations Under Title IX

N.J.A.C. 6A:7 – Managing for Equality and Equity in Education

Guarantees equal access to education programs and services for all students

Services include teaching of challenging curriculum, differentiated instruction, formative assessment, qualified teachers, high expectations for student learning

Applies to all students, preK – 12

NJ Administrative Code

May not engage in discriminatory practices against students or staff based on:◦ Race, creed, color, national origin, ancestry, age,

marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status

◦ Includes protections for pregnant students◦ New protections under HIB against bullying due to

“any other distinguishing characteristic”◦ New protections for “dating partners” under teen

dating violence statute May not retaliate for reporting harassment/

discrimination

Protected Characteristics

Unwelcome conduct of a sexual nature Conduct of a sexual nature includes both

physical and verbal conduct, and involves conduct that is related to the victim’s gender, sexual orientation or sexual identity

Key test – conduct would not have occurred “but for” the victim’s gender, sexual orientation, etc.

Two types of sexual harassment◦ Quid Pro Quo◦ Hostile Work Environment

Defining Sexual Harassment

Staff members may◦ Report to Affirmative Action Officer◦ Report to another administrator◦ Go to NJ Division on Civil Rights◦ File Claim with Commissioner of Education◦ Go to US EEOC◦ File claim in State or Federal Court

No need to confront harasser first

Reporting Sexual Harassment

When a school employee (or student) explicitly or implicitly conditions submission to sexual advances as a term or condition of employment (or participation in school)

Often includes the threat of adverse action for failure to submit to advances or promise of favorable treatment if advances are accepted

Includes acts of physical sexual violence, as well as verbal acts

Quid Pro Quo

Threat of violence if refusal to submit to sexual advances

Promise of promotion or other favorable treatment

Threat of termination Threat of humiliation – Facebook comments,

sharing of explicit images, etc.

Examples of Quid Pro Quo

For adult - Harassment that is sufficiently severe, persistent or pervasive to limit an employee’s ability to function in the work place

For student – Harassment that is sufficiently severe, persistent or pervasive to limit a student’s ability to participate in or benefit from an educational program

Could be a victim even if student or employee is not the target of the offensive behavior

Could be a single incident

Hostile Educational Environment

Unwelcome touching – i.e. rubbing shoulders Offensive gestures – simulated kissing,

sexual activity Comments about another’s body Sharing of inappropriate sexual jokes or

comments Forwarding of inappropriate jokes or images

via email to work colleagues Student witnessing widespread bullying

activity in classroom

Examples of Hostile Educational Environment

Preponderance of the Evidence – It is more likely than not that the alleged harassment occurred

Should not use other standards such as “clear and convincing” or “beyond a reasonable doubt”

School District may still find sexual harassment occurred even if law enforcement chooses not to pursue a criminal investigation

Standard of Proof

Mr. Jones, long-time principal Ms. Adams, secretary to Mr. Jones for last 20

years Good friends outside of work Often engage in bantering back and forth –

including comments of sexual nature Neither person is offended Is this sexual harassment?

Scenario – Sexual Harassment

Addressing Achievement Gaps – based on race/ethnicity, disability, poverty

Multicultural Education in Core Curriculum Equal access for all students to challenging

curriculum, extra-curricular opportunities Addressing Bullying, Dating Violence Protecting Religious Expression

Legal Imperative to Address Diverse Student Population

USDOE Office of Civil Rights becoming pro-active in looking at disparate impact in areas such as graduation rates, access to honors courses, student discipline, services for ELLs

Looking for patterns from educational data, initiating reviews on their own

Overlapping protections under Title IX, HIB, Dating Violence, IDEIA, etc.

Equal Access & Disparate Impact

Ensure that district is in compliance with all Title IX requirements, including requirements regarding:◦ Reporting and investigation of sexual harassment

complaints by students and staff◦ Training of staff◦ Enactment of required policies, procedures, notifications◦ Coordinating Title IX compliance with other statutory

requirements (bullying, dating violence, IDEIA) Ensure that district has procedures to address all

other forms of discrimination, and implements all other aspects of NJAC 6A:7

Role of Affirmative Action Officer

Sexual Harassment will in many cases constitute HIB and dating violence

Must be addressed under Title IX and relevant state statutes, with some variations in procedures

Need to be aware of and be able to use appropriate district forms and procedures

Aligning Response with HIB & Dating Violence Statutes

Under Title IX, a school district will not be found liable for harm to a student unless the district is shown to have been “deliberately indifferent” to the student victim and has actual knowledge– Davis v. Monroe Sch. Dist.

Under NJ LAD, district liable if it fails to promptly take reasonable measures to end the harassment, and constructive knowledge is sufficient for liability – L.W. v. Toms River

Under HIB, may be liable if LAD standard met AND/OR may liable if district fails to follow extensive procedural requirements

Comparison of Legal Liability UnderTitle IX / LAD/ HIB

• Requires dating violence education in health/PE curriculum for grades 7-12

• Defines “dating violence” and “dating partner”• Established task force that created a model for

addressing teen dating violence• Policy includes guidance, protocols and detailed

procedures for identifying, reporting, investigating and responding to alleged incidents

Key Elements of Dating Violence Statute

“Dating Violence” means a pattern of behavior where one person threatens to use, or actually uses physical, sexual, verbal, or emotional abuse to control a dating partner.

“Dating Partner” means any person involved in an intimate association with another individual that is primarily characterized by the expectation of affectionate involvement, whether casual, serious, or long-term

Dating Violence Statute Definitions

“At school” means in a classroom or anywhere on school property, on a school bus or other school-related vehicle, at an official school bus stop, or at any school-sponsored activity or event whether or not it is on school grounds

Caution – may still be responsible under HIB, Title IX, NJ LAW to address conduct even if occurred off school grounds

Dating Violence Definitions (cont’d)

Verbally report suspected incidents of dating violence to the principal or principal’s designee as soon as possible (must be same day)

Written report must follow no later than one school day after verbal report – NOTE tighter timeline than HIB

Must report if witnessed incident, or received reliable information about possible incident

Note – do not make own judgment call that some sources are not reliable

Protocol for Staff Member

NJDOE Model Policy includes additional information in protocol for staff members, including:

Separate the victim from the aggressor. Speak with the victim and the aggressor

separately. Speak with witnesses or bystanders

separately. Monitor the interactions of victim/aggressor. CAUTION – DO NOT take on role of

investigator

NJDOE Model Policy Protocol/Caution

In Scenarios 1 – 5, determine if sexual harassment has occurred

In Scenarios 6 and 7, determine if sexual harassment, HIB and/or teen dating violence has occurred

Review of Scenarios

Recognize legal requirements related to sexual harassment identification, reporting, protection from retaliation

Understand relationship between Title IX and other statutory protections under HIB and teen dating violence and personal responsibilities under each

Know how to apply in real world settings

Summary