Policy 9050: Sexual Harassment In The Workplace

The Board of Education recognizes that harassment of employees (including all staff, applicants for employment, both paid and unpaid interns, exempt and non-exempt status, part-time, seasonal, and temporary workers, regardless of immigration status) and certain “non-employees” (including contractors, subcontractors, vendors, consultants and other persons providing services pursuant to a contract, or their employees) on the basis of sex, gender and/or sexual orientation is abusive and illegal behavior that harms targets and negatively impacts the school culture by creating an environment of fear, distrust, intimidation and intolerance. The Board further recognizes that preventing and remedying such harassment in schools is essential to ensure a healthy, nondiscriminatory environment in which employees and “non-employees” can work productively.

Sexual harassment is a form of sex discrimination and is unlawful under federal, state and, where applicable, local law. Sexual harassment includes harassment on the basis of actual or perceived or self-identified sex, sexual orientation, gender identity, gender expression, and transgender status.

Sexual harassment includes unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual's sex, when:

submission to that conduct is made either explicitly or implicitly a term or condition of an individual's employment;
submission to or rejection of such conduct is used as the basis for decisions affecting an individual’s employment; or
the conduct has the purpose or effect of unreasonably interfering with an employee's or "non-employee’s" work or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of the sexual harassment;

Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, or verbal, nonverbal or physical aggression, intimidation or hostility that is based on actual or perceived gender and sexual stereotypes.

The Board is committed to providing an educational and working environment that promotes respect, dignity, and equality and that is free from all forms of sexual harassment. To this end, the Board condemns and strictly prohibits all forms of sexual harassment on school grounds, school buses and at all school-sponsored activities, programs and events, including those that take place at locations outside the district. The Board also prohibits sexual harassment that occurs outside the school setting if the harassment impacts the individual’s employment in a way that violates their legal rights, including when employees and "non-employees" travel on district business, or when harassment is done by electronic means (including on social media). Sexual harassment is considered a form of employee misconduct.

Retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful. Remedial and/or disciplinary action will be taken against all those who engage in sexual harassment, and against supervisory and managerial personnel who knowingly allow such behavior to continue or engage in retaliation.
Sexual harassment may subject the district to liability for harm done to targets. Harassers may also be individually subject to civil liability if sued in a court of law or to criminal liability if prosecuted.

Under various state and federal laws, listed in the references section, employees and “non-employees” have legal protections against sexual harassment in the school environment as described above. Additionally, local laws (e.g., county, city, town, village) may apply to the district. The district’s Code of Conduct also addresses appropriate behavior in the school environment. Sexual harassment can occur between persons of all ages and genders.

In order for the Board to effectively enforce this policy and to take prompt corrective measures, it is essential that all targets of sexual harassment and persons with knowledge of sexual harassment report the harassment immediately. The district will promptly investigate all complaints of sexual harassment, whether formal or informal, verbal or written. To the extent possible, all complaints will be treated in a confidential manner. Limited disclosure may be necessary to complete a thorough investigation. If the complainant reports that he/she feels unsafe at school due to the nature of the complaint, the district will determine if accommodations need to be made until the issue is resolved.

Complaints will be investigated based upon the totality of circumstances noting that not all unacceptable conduct will rise to the level of sexual harassment. Behaviors must be sufficiently severe and/or pervasive (and may even be based upon a single severe incident), and objectively offensive in the context of this policy to give rise to a finding of sexual harassment.

Managers and supervisors are required to report any complaint that they receive, or any harassment that they observe to a Title VII Compliance Officer.

If, after appropriate investigation that should be conducted within a 30 calendar day time period, absent exigent circumstances, the District finds that a an employee, “non-employee” or a third party has violated this policy, prompt corrective action will be taken in accordance with the applicable collective bargaining agreement, contract, district policy and state law.

All complainants and those who participate in sexual harassment complaints or the investigation of a complaint of sexual harassment have the right to be free from retaliation of any kind, when they do so with a good faith belief that sexual harassment has occurred. Such prohibited retaliation can include, but is not limited to, discipline, discrimination, demotion, denial of privileges, or any action that would
keep a person from coming forward to make or support a sexual harassment claim. Such actions need not be job- or education-related, or occur in the workplace or educational environment, to constitute unlawful retaliation.

The Superintendent of Schools is directed to develop and implement regulations for reporting, investigating and remedying allegations of sexual harassment. These regulations will be attached to this policy. In addition, training programs shall be established annually for employees to raise awareness of the issues surrounding sexual harassment and to implement preventative measures to help reduce incidents of sexual harassment.

Individual nondisclosure agreements may only be used as permitted by law and as described in the regulation. Mandatory arbitration clauses are prohibited in all district contracts and agreements.

This policy shall be posted in a prominent place in each district facility, on the district’s website, and shall also be published in staff informational materials, employee handbooks, and other appropriate school publications.

The policy committee will periodically review this policy's effectiveness and compliance with applicable state and federal law. The policy committee will revise the policy as needed.

External Remedies

Targets have the right to register sexual harassment complaints with the U.S. Department of Education's Office for Civil Rights (OCR). The OCR can be contacted at (800) 421-3481, 400 Maryland Avenue SW, Washington, DC 20202-1100, or at https://www2.ed.gov/about/offices/list/ocr./docs/howto.html.

Employee targets also have the right to register complaints with the federal Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights (DHR). The DHR can be contacted at (888) 392-3644, www.dhr.ny.gov/complaint, or at 1 Fordham Plaza, Fourth Floor, Bronx, NY 10458. The EEOC can be contacted at (800) 669-4000, https://www.eeoc.gov/employees/howtofile.cfm, info@eeoc.gov, or at 33 Whitehall Street, 5th Floor, New York, NY 10004 or 300 Pearl Street, Suite 450, Buffalo, NY 14202.

In addition, Westchester County has a Human Rights Commission which may be contacted at https://humanrights.westchestergov.com.

Nothing in these regulations shall be construed to limit the right of the complainant to file a lawsuit in either state or federal court, or to contact law enforcement officials if the sexual harassment involves unwanted physical touching, coerced physical confinement or coerced sex acts, which may constitute a crime. No district contract or collective bargaining agreement entered into after July 11, 2018 may include a binding arbitration clause for sexual harassment requiring arbitration before bringing the matter to court.

Ref:
Education Amendments of 1972, Title IX, 20 U.S.C.§1681 et seq.
Title VII of Civil Rights Act (1964), 42 U.S.C. §2000-e; 34 CFR §100 et seq.
Executive Law §296-d (prohibition of sexual harassment of non-employees)
Labor Law §201-g (required sexual harassment policy and training)
Civil Practice Law and Rules §§5003-b (nondisclosure agreements optional); 7515 (mandatory arbitration prohibited)
General Obligations Law §5-336 (nondisclosure agreements optional)
Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999)
Gebser v. Lago Vista Independent School District, 524 U.S, 274 (1998)
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
Burlington Industries v. Ellerth, 524 U.S. 742 (1998)
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992)
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)
Office for Civil Rights, Revised Sexual Harassment Guidance (January 19, 2001)
Office for Civil Rights, Dear Colleague Letter: Sexual Harassment Issues (2006)
Office for Civil Rights, Dear Colleague Letter: Bullying (October 26, 2010)

Adopted: December 5, 2018