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
Sexual Harassment Topics
•Potential Impact
•What is Sexual Harassment?
•Supreme Court Decisions
•McGraw CSD Policy:
Purpose and Prohibitions
•Is it Sexual Harassment?
Potential Impact of Sexual Harassment
•Expensive and lengthy litigation
•Employer liability
•Personal liability
•Termination of employment
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
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
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
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.
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…
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.
What is Sexual Harassment?
Hostile Work Environment
Examples
•Verbal
•Non-Verbal
•Physical
What is Sexual Harassment?
Hostile Work Environment
Examples
Verbal
• Jokes
• Slurs
• Suggestive comments
• Threats
• Requests for Sexual Favors
What is Sexual Harassment?
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?
Hostile Work Environment
Examples
Physical
• Sexual Assault
• Petting, pinching, grabbing, holding, hugging,
kissing, tickling, massaging, exposing body parts
What is Sexual Harassment?
“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?
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.
SUPREME COURT
DECISIONS
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.
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.
Gebser v. Lago Vista ISD (1998)
Established parameters of school district liability in
sexual harassment cases.
Holding: Schools can be held liable for employee-tostudent 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.
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.
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.
Jackson v. Birmingham BOE (2005)
Title IX protects from retaliation employees who bring
complaints on behalf of others.
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?
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”
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.
McGraw Central School District
Title IX Compliance Officer:
Mary Curcio
(607) 836-3636
Is it sexual harassment?
• For the past year, an employee has been subjected
to daily fondling by her supervisor against her will.
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.
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.
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.
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
Dignity for All Students Act
“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
• 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 wellbeing…
Dignity for All Students Act
(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
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.
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
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.
Reporting Obligations of
School Employees under Dignity Act
Board policy will identify designated
school official
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
Questions?
David V. Cirillo, Esq.
dcirillo@ocmboces.org
(315)433-2629