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DEFINITIONS

For the purpose of the Genetic Information Nondiscrimination Act (GINA), “genetic information” means information about:

  1. An individual’s genetic tests;
  2. The genetic tests of that individual’s family members;
  3. The manifestation of disease or disorder in family members of the individual (family medical history);
  4. An individual’s request for or receipt of genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
  5. The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

“Genetic information” does not include information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.

29 CFR 1635.3(c)

“Genetic test” means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. Genetic tests include, for example:

  1. A test to determine whether someone has the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer, a test to determine whether someone has a genetic variant associated with hereditary nonpolyposis colon cancer, and a test for a genetic variant for Huntington’s Disease;
  2. Carrier screening for adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring;
  3. Amniocentesis and other evaluations used to determine the presence of genetic abnormalities in a fetus during pregnancy;
  4. Newborn screening analysis that uses DNA, RNA, protein, or metabolite analysis to detect or indicate genotypes, mutations, or chromosomal changes, such as a test for PKU performed so that treatment can begin before a disease manifests;
  5. Pre-implantation genetic diagnosis performed on embryos created using in vitro fertilization;
  6. Pharmacogenetic tests that detect genotypes, mutations, or chromosomal changes that indicate how an individual will react to a drug or a particular dosage of a drug;
  7. DNA testing to detect genetic markers that are associated with information about ancestry; and
  8. DNA testing that reveals family relationships, such as paternity.

Examples of tests or procedures that are not genetic tests are:

  1. An analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes;
  2. A medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites;
  3. A test for infectious and communicable diseases that may be transmitted through food handling;
  4. Complete blood counts, cholesterol tests, and liver-function tests.

A test for the presence of alcohol or illegal drugs is not a genetic test.  However, a test to determine whether an individual has a genetic predisposition for alcoholism or drug use is a genetic test.

29 CFR 1635.3(f)

NOTICES

The School shall post in conspicuous places on its premises, where notices to employees and applicants for employment are customarily posted, a notice setting forth excerpts from or summaries of the pertinent provisions of the GINA regulation and information pertinent to the filing of a complaint.  29 CFR 1635.10(c)

PROHIBITED PRACTICES

Discrimination

TSBVI shall not discriminate against an individual on the basis of genetic information in regard to hiring, discharge, compensation, or terms, conditions, or privileges of employment.  Notwithstanding the foregoing, a cause of action for disparate impact is not available under GINA.  42 U.S.C. 2000ff-1(a); 29 CFR 1635.4

Retaliation

TSBVI shall not discriminate against an individual because the individual has opposed any act or practice made unlawful by GINA or because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under GINA.  42 U.S.C. 2000ff-6(f); 29 CFR 1635.7

Acquisition

Except as set forth below or otherwise provided in the GINA regulations, the School shall not request, require, or purchase genetic information of an individual or family member of the individual.  42 U.S.C. 2000ff-1(b); 29 CFR 1635.8(a)

“Request” includes:

  1. Conducting an Internet search on an individual in a way that is likely to result in the School’s obtaining genetic information;
  2. Actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and
  3. Making requests for information about an individual’s current health status in a way that is likely to result in the School’s obtaining genetic information.

29 CFR 1635.8(a)

Disclosure

If the School possesses genetic information, regardless of how the information was obtained, it shall not disclose the information except as set forth in the GINA regulations.  29 CFR 1635.9(b) [See CONFIDENTIALITY, below]

MANIFESTED CONDITION

TSBVI shall not be considered to be in violation of the GINA regulations based on the use, acquisition, or disclosure of medical information about a manifested disease, disorder, or pathological condition of an employee or member, even if the disease, disorder, or pathological condition has or may have a genetic basis or component.  However, genetic information about a manifested disease, disorder, or pathological condition is subject to the requirements and prohibitions of GINA.  29 CFR 1635.12

“Manifestation” or “manifested” means, with respect to a disease, disorder, or pathological condition, that an individual has been or could reasonably be diagnosed with the disease, disorder, or pathological condition by a health-care professional with appropriate training and expertise in the field of medicine involved.  A disease, disorder, or pathological condition is not manifested if the diagnosis is based principally on genetic information.  29 CFR 1635.3(g)

INADVERTENT ACQUISITION

The general prohibition against requesting, requiring, or purchasing genetic information does not apply where the School inadvertently requests or requires genetic information of the individual or family member of the individual.  This exception applies in situations where a manager or supervisor learns genetic information about an individual by:

  1. Overhearing a conversation between the individual and others;
  2. Receiving the information during a casual conversation, including in response to an ordinary expression of concern that is the subject of the conversation.  This exception does not apply where a manager or supervisor follows up with questions that are probing in nature, such as whether other family members have the condition or whether the individual has been tested for the condition, because the supervisor or official should know that these questions are likely to result in the acquisition of genetic information;
  3. Receiving unsolicited information (e.g., where a manager or supervisor receives an unsolicited e-mail about the health of an employee’s family member from a co-worker); or
  4. Accessing a social media platform that the manager or supervisor was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).

29 CFR 1635.8(b)(1)(ii)

REQUESTS FOR MEDICAL INFORMATION

If the School acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the School directs the individual and/or health-care provider from whom it requested medical information not to provide genetic information [see SAFE HARBOR, below].  29 CFR 1635.8(b)(1)(i)(A)

Situations involving lawful requests for medical information include, for example:

  1. Requests for documentation to support a request for reasonable accommodation under federal, state, or local law;
  2. Requests for medical information as required, authorized, or permitted by federal, state, or local law, such as where an employee requests leave under the Family and Medical Leave Act (FMLA) to attend to the employee’s own serious health condition or where an employee complies with the FMLA’s employee return to work certification requirements; or
  3. Requests for documentation to support leave that is not governed by federal, state, or local laws requiring leave, as long as the documentation required to support the request otherwise complies with the requirements of the Americans with Disabilities Act (ADA) and other laws limiting the School’s access to medical information.

29 CFR 1635.8(b)(1)(i)(D)

Safe Harbor

Any receipt of genetic information in response to a request for medical information shall be deemed inadvertent if the School uses language such as the following:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical in-formation. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

TSBVI's failure to give such a notice or to use this or similar language will not prevent the School from establishing that a particular receipt of genetic information was inadvertent if the request for medical information was not likely to result in the School’s obtaining genetic information (for example, where an overly broad response is received in response to a tailored request for medical information).

29 CFR 1635.8(b)(1)(i)(B), (C)

Employment Examinations

The prohibition on acquisition of genetic information applies to medical examinations related to employment.  TSBVI shall tell health-care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job.  29 CFR 1635.8(d)

Remedial Measures

TSBVI shall take additional reasonable measures within its control if it learns that genetic information is being requested or required in medical examinations related to employment.  Such reasonable measures may depend on the facts and circumstances under which a request for genetic information was made, and may include no longer using the services of a health-care professional who continues to request or require genetic information during medical examinations after being informed not to do so.  29 CFR 1635.8(d)

HEALTH OR GENETIC SERVICES

The general prohibition against requesting, requiring, or purchasing genetic information does not apply where the School offers health or genetic services, including services offered as part of a voluntary wellness program, if the conditions at 29 CFR 1635.8(b)(2) are met.

TSBVI may not offer a financial inducement for individuals to provide genetic information but may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information.  The School shall make clear, in language reasonably likely to be understood by those completing the health risk assessment, that the inducement will be made available whether or not the participant answers questions regarding genetic information.

TSBVI may offer financial inducements to encourage individuals who have voluntarily provided genetic information (e.g., family medical history) that indicates that they are at increased risk of acquiring a health condition in the future to participate in disease management programs or other programs that promote healthy lifestyles, and/or to meet particular health goals as part of a health or genetic service.  However, the School must also offer these programs to individuals with current health conditions and/or to individuals whose lifestyle choices put them at increased risk of developing a condition.

29 CFR 1635.8(b)(2)

LEAVE REQUESTS

The general prohibition against requesting, requiring, or purchasing genetic information does not apply where TSBVI requests family medical history to comply with the certification provisions of the FMLA or state or local family and medical leave laws, or pursuant to a policy (even in the absence of requirements of federal, state, or local leave laws) that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave.  29 CFR 1635.8(b)(3)

PUBLICLY AVAILABLE INFORMATION

The general prohibition against requesting, requiring, or purchasing genetic information does not apply where TSBVI acquires genetic information from documents that are commercially and publicly available for review or purchase, including newspapers, magazines, periodicals, or books, or through electronic media, such as information communicated through television, movies, or the Internet, except that this exception does not apply to:

  1. Medical databases, court records, or research databases available to scientists on a restricted basis;
  2. Genetic information acquired through sources with limited access, such as social networking sites and other media sources which require access permission from a specific individual or where access is conditioned on membership in a particular group, unless TSBVI can show that access is routinely granted to all who request it;
  3. Genetic information obtained through commercially and publicly available sources if the School sought access to those sources with the intent of obtaining genetic information; or
  4. Genetic information obtained through media sources, whether or not commercially and publicly available, if the School is likely to acquire genetic information by accessing those sources, such as Web sites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination.

29 CFR 1635.8(b)(4)

WORKPLACE MONITORING

The general prohibition against requesting, requiring, or purchasing genetic information does not apply where the School acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace. Such monitoring must meet the criteria at 29 CFR 1635.8(b)(5).  29 CFR 1635.8(b)(5)

INQUIRIES MADE OF FAMILY MEMBERS

TSBVI does not violate the GINA regulations when it requests, requires, or purchases information about a manifested disease, disorder, or pathological condition of an employee whose family member is also employed by TSBVI or who is receiving health or genetic services on a voluntary basis.  For example, TSBVI does not violate the GINA regulations by asking someone whose sister also works for the School to take a post-offer medical examination that does not include requests for genetic information.  29 CFR 1635.8(c)

CONFIDENTIALITY

If the School possesses genetic information in writing about an employee, it must maintain such information on forms and in medical files (including where the information exists in electronic forms and files) that are separate from personnel files.  The School must treat such information as a confidential medical record.  TSBVI may maintain genetic information about an employee in the same file in which it maintains confidential medical information under the ADA.

Genetic information placed in personnel files before November 21, 2009, need not be removed.  TSBVI will not be liable under the GINA regulations for the mere existence of the information in the file.  However, the prohibitions on use and disclosure of genetic information apply to all genetic information that meets the statutory definition, including genetic information requested, required, or purchased before November 21, 2009.

Genetic information that the School receives orally need not be reduced to writing but may not be disclosed, except as permitted by 29 CFR part 1635.

Genetic information that the School acquires through sources that are commercially and publicly available, as provided by 29 CFR 1635.8(b)(4), is not considered confidential genetic information but may not be used to discriminate against an individual.

29 CFR 1635.9(a)

Disclosure Permitted

If TSBVI possesses any genetic information, regardless of how the School obtained the information (except for genetic information acquired through commercially and publicly available sources), it may disclose the information:

  1. To the employee (or family member if the family member is receiving genetic services) about whom the information pertains upon receipt of the employee’s written request;
  2. To an occupational or other health researcher if the research is conducted in compliance with the regulations and protections at 45 CFR part 46;
  3. In response to an order of a court.  TSBVI may disclose only the genetic information expressly authorized by the order.  If the order was secured without the knowledge of the employee to whom the information refers, TSBVI shall inform the employee of the order and any genetic information that was disclosed pursuant to the order;
  4. To government officials investigating compliance with Title II of GINA if the information is relevant to the investigation;
  5. To the extent the information is disclosed in support of an employee’s compliance with the certification provisions of the FMLA or certification requirements under state family and medical leave laws; or
  6. To a federal, state, or local public health agency, only with regard to information about the manifestation of a disease or disorder that concerns a contagious disease that presents an imminent hazard of death or life-threatening illness, provided that the individual whose family member is the subject of the disclosure is notified of such disclosure.

29 CFR 1635.9(b)

Relationship to HIPAA Privacy Regulations

The GINA regulations do not apply to the use or disclosure of genetic information that is protected health information subject to regulation under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  29 CFR 1635.9(c) [See CRD(LEGAL)]

Adopted:          4/5/13
Amended:       
Reviewed:

PolicyTitle IndexUpdate
Index This page 9/29/95, 11/17/95, 1/26/96, 3/22/96, 5/24/96, 9/27/96, 11/15/96, 1/24/97, 3/21/97, 8/1/97, 9/26/97, 11/14/97, 1/23/98, 3/31/98, 5/21/98 11/6/98, 11/19/99, 1/28/00, 3/24/00, 5/25/00, 5/31/01, 1/24/02, 3/26/02, 11/22/02, 1/31/03, 3/21/03, 5/28/03/, 11/21/03, 1/30/04, 3/26/04, 7/23/04, 1/26/05 (SH) , 2/1/05, 4/1/05, 5/25/05, 11/18/05, 1/27/06, 3/24/06, 7/28/06, 9/22/06, 11/17/06, 1/26/07, 3/23/07, 5/23/07, 7/23/07, 9/28/07, 11/16/07, 1/25/08, 3/28/08, 6/4/08, 9/26/08, 11/21/08, 1/23/09, 4/3/09, 9/25/09, 11/20/09, 1/22/10, 4/9/10, 6/2/10, 11/19/10, 1/28/11, 11/9/12, 4/5/13, 9/20/13, 1/31/14, 4/4/14, 10/3/14, 11/21/14, 9/25/15, 11/20/15, 4/8/16, 9/30/16, 11/18/16
DAA EMPLOYMENT OBJECTIVES: EQUAL OPPORTUNITY EMPLOYMENT Amended:  4/8/16
DAB EMPLOYMENT OBJECTIVES: GENETIC DISCRIMINATION Adopted: 4/5/13
DAC (TSBVI) EMPLOYMENT OBJECTIVES: OBJECTIVE CRITERIA FOR PERSONNEL DECISIONS Amended: 4/5/13
DAFA (TSBVI) PERSONNEL WELFARE: HEALTH Amended: 11/22/02
DBA(TSBVI) EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: CREDENTIALS AND RECORDS Amended: 4/5/13
DBAA EMPLOYMENT REQUIREMENTS AND RESTRICTIONS:  CRIMINAL HISTORY AND CREDIT REPORTS Amended:  4/5/13
DBB(TSBVI) EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: PHYSICAL EXAMINATIONS AND COMMUNICABLE DISEASES Amended 4/5/13
DBD (TSBVI) EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: CONFLICT OF INTEREST Amended: 4/5/13
DBDA (TSBVI) CONFLICT OF INTEREST: DUAL EMPLOYMENT Reviewed: 11/18/16
DBE (TSBVI) EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: NEPOTISM Reviewed: 4/5/13
DBE-E EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: NEPOTISM Reviewed 5/31/01
DC (TSBVI) EMPLOYMENT PRACTICES Amended: 9/30/16
DCA (TSBVI) EMPLOYMENT PRACTICES: PROBATIONARY CONTRACTS Amended: 4/5/13
DCB (TSBVI) EMPLOYMENT PRACTICES: TERM CONTRACTS Amended:  11/18/05
DCD (TSBVI) EMPLOYMENT PRACTICES: NONCONTRACT EMPLOYMENT Amended 1/28/05
DCDB (TSBVI) NONCONTRACT EMPLOYMENT: EMPLOYEE PERFORMANCE AND DISCIPLINE MANAGEMENT Amended: 4/5/13
DCE (TSBVI) EMPLOYMENT PRACTICES: OTHER TYPES OF CONTRACTS Amended: 4/5/13
DEA (TSBVI) COMPENSATION AND BENEFITS: SALARIES AND WAGES Amended: 6/4/08
DEC COMPENSATION AND BENEFITS: LEAVES AND ABSENCES Amended: 9/26/08
DECA (TSBVI) LEAVES AND ABSENCES: SICK LEAVE POOLING Amended 8/9/99
DED (TSBVI) HOLIDAYS Amended 9/23/03
DEE COMPENSATION AND BENEFITS: EXPENSE REIMBURSEMENT Adopted 7/23/04
DEF SALARIES: MERIT SALARY INCREASES; ONE-TIME MERIT PAYMENTS Reviewed 4/5/13
DEG (TSBVI) COMPENSATION AND BENEFITS: RETIREMENT PROGRAM Amended:  9/25/09
DEH (TSBVI) COMPENSATION AND BENEFITS: CAREER PROGRESSION PROGRAMS Amended:  1/27/06
DF TERMINATION OF CONTRACT Amended 4/4/14
DFAA PROBATIONARY CONTRACTS: SUSPENSION/TERMINATION DURING CONTRACT Amended 4/5/13
DFAB PROBATIONARY CONTRACTS: TERMINATION AT END OF YEAR Amended 4/5/13
DFAC PROBATIONARY CONTRACTS: RETURN TO PROBATIONARY STATUS Amended 4/5/13
DFBA TERM CONTRACTS: SUSPENSION/TERMINATION DURING CONTRACT Amended 11/21/14
DFBB (TSBVI) TERM CONTRACTS: NONRENEWAL Amended 11/21/14
DFD TERMINATION OF CONTRACT: HEARINGS BEFORE HEARING EXAMINER Amended 11/21/14
DFE TERMINATION OF CONTRACT: RESIGNATION Amended 4/5/13
DFF (TSBVI) TERM CONTRACTS: REDUCTION IN FORCE Amended 4/5/13
DFFD (TSBVI) TERMINATION OF EMPLOYMENT: REDUCTION IN FORCE - NON-CONTRACT EMPLOYMENT  Amended 4/5/13
DG EMPLOYEE RIGHTS AND PRIVILEGES Amended:  11/16/07
DGA EMPLOYEE RIGHTS AND PRIVILEGES: ASSOCIATION AND PARTICIPATION Amended 5/28/03
DGB EMPLOYEE RIGHTS AND PRIVILEGES: PERSONNEL-MANAGEMENT RELATIONS Amended 5/28/03
DGBA PERSONNEL-MANAGEMENT RELATIONS: EMPLOYEE COMPLAINTS Amended 11/21/14
DGBA(E) (TSBVI) PERSONNEL-MANAGEMENT RELATIONSHIPS: EMPLOYEE COMPLAINTS Amended 10/3/14
DH (TSBVI) EMPLOYEE STANDARDS OF CONDUCT Amended: 1/31/14
DH-E EMPLOYEE STANDARDS OF CONDUCT Amended 5/25/04
DHD (TSBVI) PERSONNEL RELATIONSHIPS WITH STUDENTS AND FAMILIES Amended 9/20/13
DHE EMPLOYEE STANDARDS OF CONDUCT: SEARCHES AND ALCOHOL/DRUG TESTING Amended 9/25/15
DHF (TSBVI) EMPLOYMENT STANDARDS OF CONDUCT: FRAUDULENT ACTION AGAINST TSBVI Amended 9/25/15
DHG (TSBVI) EMPLOYMENT STANDARDS OF CONDUCT: ETHICS Amended 1/28/00
DI (TSBVI) EMPLOYEE WELFARE Amended: 3/26/04
DIA EMPLOYEE WELFARE:  FREEDOM FROM HARASSMENT Amended:  11/20/15
DI-E (TSBVI) EMPLOYEE WELFARE: DRUG-FREE WORKPLACE/SCHOOL Amended:  11/20/15
DK (TSBVI) ASSIGNMENTS AND SCHEDULES Amended:  1/27/06
DKA (TSBVI) ASSIGNMENT AND SCHEDULES: EMPLOYEE WORK LOCATION Adopted 1/26/99
DKAA (TSBVI) ASSIGNMENTS AND SCHEDULES: WORK LOCATION OTHER THAN THE TSBVI CAMPUS Amended: 9/24/04
DL WORK LOAD Reviewed1/31/03
DLB WORK LOAD:  REQUIRED PLANS AND REPORTS Adopted 5/25/05
DMA PROFESSIONAL DEVELOPMENT: STAFF DEVELOPMENT Amended 5/25/05
DMAA PROFESSIONAL DEVELOPMENT: STAFF DEVELOPMENT EDUCATION ON AIDS AND HIV Reviewed 9/30/16
DMBA (TSBVI) SPECIAL PROGRAMS TRAINING: TRAINING RELATED TO VISUAL IMPAIRMENT Amended 9/22/00
DMD PROFESSIONAL DEVELOPMENT: PROFESSIONAL MEETINGS AND VISITATIONS Reviewed 3/21/03
DNA PERFORMANCE APPRAISAL: EVALUATION OF TEACHERS Amended 11/18/16
DNAA (TSBVI) ACCOUNTABILITY: APPRAISAL OF NONCONTRACT EMPLOYEES Amended: 3/21/03
DNB (TSBVI) PERFORMANCE APPRAISAL: EVALUATION OF OTHER PROFESSIONAL EMPLOYEES Amended 5/25/05
DP (TSBVI) PERSONNEL POSITIONS Amended 5/25/04
DPB (TSBVI) PERSONNEL POSITIONS: SUBSTITUTE, TEMPORARY, AND PART-TIME POSITIONS Amended 3/21/03

NONDISCRIMINATION - IN GENERAL

The School shall not fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of any of the following protected characteristics:

  1. Race, color, or national origin;
  2. Sex;
  3. Religion;
  4. Age (applies to individuals who are 40 years of age or older); or
  5. Disability; or
  6. Genetic information.

42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12100 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Chapter 21 (Texas Commission on Human Rights Act); Labor Code Chapter 21, Subchapter H (genetic information)

Title VII proscribes employment practices that are overtly discriminatory (disparate treatment), as well as those that are fair in form but discriminatory in practice (disparate impact). Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989)

Disparate Treatment

Disparate treatment (intentional discrimination) occurs when members of a protected group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. 29 CFR 1607.11

Disparate Impact

Disparate impact occurs when an employer uses a particular employment practice that causes a disparate (disproportionate) impact on a protected group and the employer fails to demonstrate that the challenged practice is job-related and consistent with business necessity. 42 U.S.C. 2000e-2(k)(1)(A); Labor Code 21.115, 21.122

JOB QUALIFICATION

The School may take employment actions based on religion, sex, national origin, or age in those certain instances where religion, sex, national origin, or age is a bona fide occupational qualification.

42 U.S.C. 2000e-2(e); 29 U.S.C. 623(f); Labor Code 21.119

EMPLOYMENT POSTINGS

The School shall not print or publish any notice or advertisement relating to School employment that indicates any preference, limitation, specification, or discrimination based on race, color, religion, sex, or national origin, unless the characteristic is a bona fide occupational qualification. 2 U.S.C. 2000e-3(b); Labor Code 21.059

HARASSMENT OF EMPLOYEES

The School has an affirmative duty to maintain a working environment free of harassment on the basis of sex, race, color, religion, and national origin. 42 U.S.C. 2000e et seq.; 29 CFR 1606.8(a), 1604.11 [See DIA]

RETALIATION

The School may not discriminate against any employee or applicant for employment because the employee or applicant has opposed any unlawful, discriminatory employment practices or participated in the investigation of any complaint related to an unlawful, discriminatory employment practice.

29 U.S.C. 623(d) (ADEA); 42 U.S.C. 2000e-3(a) (Title VII); 34 CFR 100.7(e) (Title VI); 34 CFR 110.34 (Age Act); 42 U.S.C. 12203 (ADA); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX); Labor Code 21.055

NOTICES

The School shall post in conspicuous places upon its premises a notice setting forth the information the Equal Employment Opportunity Commission deems appropriate to effectuate the purposes of the anti-discrimination laws.

29 U.S.C. 627; 42 U.S.C. 2000e-10

Section 504 Notice

The School shall take appropriate steps to notify applicants and employees, including those with impaired vision or hearing, that it does not discriminate on the basis of disability.

The notice shall state:

  1. That the School does not discriminate in employment in its programs and activities; and
  2. The identity of the School's 504 coordinator.

Methods of notification may include:

  1. Posting of notices;
  2. Publication in newspapers and magazines;
  3. Placing notices in School publications; and
  4. Distributing memoranda or other written communications.

If the School publishes or uses recruitment materials containing general information that it makes available to applicants or employees, it shall include in those materials a statement of its nondiscrimination policy.

34 CFR 104.8

AGE DISCRIMINATION

The School may take an employment action on the basis of age pursuant to a bona fide seniority system or a bona fide employee benefit plan. However, a bona fide employee benefit plan shall not excuse the failure to hire any individual and no such benefit plan shall require or permit the involuntary retirement of any individual because of age.

29 U.S.C. 623(f); Labor Code 21.102

BANKRUPTCY DISCRIMINATION

The School may not terminate the employment of, or discriminate with respect to, employment against an individual who is, or has been, a debtor under the National Bankruptcy Act (Bankruptcy Act or Act), 11 USCA § 1 et seq., a debtor or bankrupt under the Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt –

  1. is or has been a debtor under the Act or a debtor or bankrupt under the Bankruptcy Act;
  2. has been insolvent before the commencement of a case under the Act or during the case but before the grant or denial of a discharge; or
  3. has not paid a debt that is dischargeable in a case under the Bankruptcy Act or that was discharged under the Act.

11 U.S.C.A. § 525

SEX DISCRIMINATION

Gender Stereotypes

The School may not evaluate employees by assuming or insisting that they match the stereotype associated with their group. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Pregnancy

The prohibition against discrimination on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. The School shall treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringe benefit programs.

42 U.S.C. 2000e(k); 29 CFR 1604.10; Labor Code 21.106

Equal Pay

The School may not pay an employee at a rate less than the rate the employer pays employees of the opposite sex for equal work on jobs the performance of which require equal skill, effort, or responsibility and which are performed under similar working conditions. This rule does not apply if the payment is pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

29 U.S.C. 206(d); 34 CFR 106.54

RELIGIOUS DISCRIMINATION

The prohibition against discrimination on the basis of religion includes all aspects of religious observances and practice, as well as religious belief, unless the School demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship to the School's business. "Undue hardship" means more than a de minimus (minimal) cost.

42 U.S.C. 2000e(j); 29 CFR 1605.2; Labor Code 21.108

The School may not substantially burden an employee's free exercise of religion, unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.

Civ. Prac. & Rem. Code 110.003

A person employed or maintained to obtain or aid in obtaining positions for the School may not directly or indirectly ask about, orally or in writing, the religion or religious affiliation of anyone applying for employment. A violation of this provision is a Class B misdemeanor. A person who violates this provision is subject to civil penalties.

Education Code 22.901

DISABILITY DISCRIMINATION

The School may not discriminate against a qualified individual on the basis of disability in job application procedures, hiring, advancement, or discharge of employees, compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. 12112(a); Labor Code 21.051

In addition, the School must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted by the Individuals with Disabilities Education Act.

34 CFR 300.177(b)

Discrimination Based On Lack of Disability

The Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act do not provide a basis for a claim that an individual was subject to discrimination because of the individual’s lack of disability.

42 U.S.C. 12201(g); Labor Code 21.005(c)

Definition of Disability

“Disability means:

  1. An actual disability: a physical or mental impairment [see definitions below] that substantially limits one or more of an individual’s major life activities;
  2. A record of having such an impairment; or
  3. Being regarded as having such an impairment.

An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

‘Regarded as’ Having An Impairment

An individual meets the requirement of being “regarded as” having an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Transitory and Minor

The “regarded as” prong of the definition does not apply to impairments that are transitory or minor. A transitory impairment is one with an actual or expected duration of six months or less. The “transitory” exception does not apply to the “actual disability” or “record of disability” prongs of the definition.

Mitigating Measures

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, low-vision devices, prosthetics, hearing aids, mobility devices, oxygen therapy, assistive technology, or learned behavioral or adaptive neurological modifications.

The ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses and contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.

42 U.S.C. 12102(1), (3), (4); 29 CFR 1630.2(g), .3(j)(1); Labor Code 21.002, 0021

Other Definitions

‘Physical or Mental Impairment’

“Physical or Mental Impairment” means:

  1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
  2. Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 CFR 1630.3(h)

‘Major Life Activities’

“Major life activities” include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

“Major life activities” also include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within the body system.

42 U.S.C. 12102(2); 29 CFR 1630.3(i), Labor Code 21.002

‘Qualified Individual’

“Qualified individual” means an individual who:

  1. Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
  2. With or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. Consideration shall be given to the School’s judgment as to what functions of a job are essential. A written job description prepared before advertising or interviewing applicants for the job is evidence of the job’s essential functions. 42 U.S.C. 12111(8)

Reasonable Accommodations

The School shall make reasonable accommodations to an otherwise qualified individual who meets the definition of disability under the “actual disability” or “record of disability” prongs, unless the School can demonstrate that the accommodation would impose an undue hardship on the operation of the School. The School is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

42 U.S.C. 12112(b)(5); 29 CFR 1630.4(o)(4), .9; 29 U.S.C. 794; 34 CFR 104.11; Labor Code 21.128

“Reasonable accommodation” includes:

  1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
  2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. 12111(9); 29 CFR 1630.2(o); 34 CFR 104.12(b)

“Undue hardship” means an action requiring significant difficulty or expense when considered in light of the nature and cost of the accommodation needed, overall financial resources of the affected facility and the district, and other factors set out in law.

42 U.S.C. 12111(10); 29 CFR 1630.2(p); 34 CFR 104.12(c)

Discrimination Based On Relationship

The School shall not exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social, or other relationship or association.

42 U.S.C. 12112(b)(4); 29 CFR 1630.8; 34 CFR 104.11

ILLEGAL DRUGS AND ALCOHOL

The term "qualified individual with a disability" does not include any employee or applicant who is currently engaging in the illegal use of drugs, when the School acts on the basis of such use.

Drug Testing

The School is not prohibited from conducting drug testing of employees and applicants for the illegal use of drugs or making employment decisions based on the results of such tests.

42 U.S.C. 12114(c), (d); Labor Code 21.002(6)(A)

Alcohol Use

The term "qualified individual with a disability" does not include an individual who is an alcoholic and whose current use of alcohol prevents the employee from performing the duties of his or her job or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.

42 U.S.C. 12114(a); 29 U.S.C. 705(20)(C); 29 CFR 1630.3(a); 28 CFR 35.104; ; Labor Code 21.002(6)(A)

QUALIFICATION STANDARDS

Direct Threat To Health Or Safety

As a qualification standard, the School may require that an individual not pose a direct threat to the health or safety of other individuals in the workplace. "Direct threat" means a significant risk to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation.

42 U.S.C. 12111(3); 29 CFR 1630.2(q); Labor Code 21.002(6)(B)

Vision Standards and Tests

The School shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the School, is shown to be job-related for the position in question and consistent with business necessity. 42 U.S.C. 12113(c); Labor Code 21.115(b)

Communicable Diseases

The School may refuse to assign or continue to assign an individual to a job involving food handling if the individual has an infectious or communicable disease that is transmitted to others through handling of food.

42 U.S.C. 12113(d); 29 U.S.C. 705(20)(D); 29 CFR 1630.16(e); Labor Code 21.002(6)(B)

Service Animals

The School is subject to the jurisdiction of Title I of the ADA (employment discrimination) and to section 504 of the Rehabilitation Act (employment discrimination) and shall comply with the reasonable accommodation requirements of those laws with respect to service animals [See REASONABLE ACCOMMODATIONS, above]

Military Service

The School shall not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of membership in a uniformed service, performance in a uniformed service, application for uniformed service, or obligation to a uniformed service. The School shall not take adverse employment action or discriminate against any person who takes action to enforce protections afforded by the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA).

38 U.S.C. 4311

GRIEVANCE POLICIES     

Section 504

The School shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act.

34 CFR 104.7(b), 104.11

Americans With Disabilities Act

The School shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the Americans with Disabilities Act.

28 CFR 35.107, 35.140

Title IX

The School shall adopt and publish grievance procedures providing for prompt and equitable resolution of employee complaints alleging any action prohibited by Title IX.

34 CFR 106.8(b); North Haven Board of Education v. Bell, 456 U.S. 512 (1982) [See DGBA]

COMPLIANCE COORDINATOR

The School shall designate at least one employee to coordinate its efforts to comply with Title IX, Section 504, the Age Act, and the ADA. The School shall notify all employees of the name, office address, and telephone number of the employee(s) so designated. 34 CFR 104.7(b), 104.11; 28 CFR

35.107, 35.140; 34 CFR 106.8(b)

ADA COORDINATOR

The School designates the following persons to coordinate all its efforts to comply with the Americans with Disabilities Act:

NAME: William Daugherty, Superintendent
OFFICE ADDRESS: 1100 W. 45th Street
OFFICE TELEPHONE: (512)206-9133

ASSISTANT COORDINATOR FOR FACILITIES: Brian McDonald, Support Services Director
(512)206-9126

ASSISTANT COORDINATOR FOR HUMAN RESOURCES MATTERS: Kate Mainzer, Director of Human Resources, (512)206-9132

TITLE IX COORDINATOR

The School designates the following person to coordinate its efforts to comply with Title IX of the Education Amendments of 1972, as amended as they relate to employment issues:

NAME: Kate Mainzer, Director of Human Resources
OFFICE ADDRESS: 1100 W. 45th Street
OFFICE TELEPHONE: (512)206-9132

504 COORDINATOR

The School designates the following person to coordinate its efforts to comply with non-student related provisions of Section 504 of the Vocational Rehabilitation Act of 1973:

NAME: William Daugherty, Superintendent
OFFICE ADDRESS: 1100 W. 45th Street
OFFICE TELEPHONE: (512)206-9133

Adopted:         2/9/79

Amended:        1/11/80, 6/14/80, 11/13/81, 1/14/83, 10/25/85, 1/23/87, 1/14/88, 9/15/88, 1/29/93, 11/19/93, 3/25/94, 11/17/95, 11/14/97, 1/28/00, 5/31/01, 3/26/02, 11/18/05, 11/20/09, 4/5/13, 4/8/16

Reviewed: 

TSBVI shall hire, assign, reassign, promote, demote, or dismiss employees according to nondiscriminatory, job-related standards.

The Board establishes the following objective criteria for decisions regarding the hiring, assignment, reassignment, promotion, demotion, or dismissal of School personnel. These criteria are not rank-ordered and may be considered in whole, or in part, in making such decisions.

  1. Education and/or training.
  2. Certification or licensure.
  3. Experience.
  4. Demonstrated knowledge and skills related to the position.
  5. References.
  6. Performance appraisals.
  7. Disciplinary actions.
  8. Suitability for the position as demonstrated in the interview (e.g., interpersonal, communication skills).
  9. The needs of the School.

Adopted:         3/31/98
Amended:        4/5/13
Reviewed:       1/24/02

SERVICES TO EMPLOYEES

TSBVI's governing board may expend money for the provision of first aid, or other minor medical attention, for employees injured in the course and scope of their employment, and for the repair and/or replacement of employees' items of personal property which are damaged, or destroyed, in the course and scope of their employment, so long as such items are medically prescribed equipment (e.g. eyeglasses, hearing aids, etc.).

General Appropriations Act, Article III, Special Provisions for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf (2001).

Adopted: 7/13/79
Amended: 11/19/93, 9/27/96, 9/26/97, 11/22/02
Reviewed:

DEFINITIONS

“Criminal history clearinghouse” (Clearinghouse) means the electronic clearinghouse and subscription service established by the Department of Public Safety (DPS) to provide criminal history record information to persons entitled to receive that information and to provide updates to such information.  A person who is the subject of the criminal history record information requested must consent to the release of the information.  Gov’t Code 411.0845(a), (h)

“Criminal history record information” (CHRI) means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, information, and other formal criminal charges and their dispositions.  Gov’t Code 411.082(2)

“National criminal history record information” (NCHRI) means criminal history record information obtained from DPS under Government Code Chapter 411, Subchapter F, and the Federal Bureau of Investigation (FBI) under Government Code 411.087.  Education Code 22.081(2)

CERTIFIED PERSONS

The State Board for Educator Certification (SBEC) shall review the NCHRI of a person who is an applicant for or holder of a certificate and who is employed by or is an applicant for employment by the School.  Education Code 22.0831(c)

NONCERTIFIED EMPLOYEES

Applicability

This section applies to a person who is not an applicant for or holder of a certificate from SBEC and who, on or after January 1, 2008, is offered employment by:

  1. The school; or
  2. A shared services arrangement, if the employee’s or applicant’s duties are or will be performed on school property or at another location where students are regularly present.

Information to DPS and TEA

Before or immediately after employing or securing the services of a person subject to this section, the
school shall send or ensure that the person sends to DPS information that DPS requires for obtaining NCHRI, which may include fingerprints and photographs.

The school shall provide TEA with the name of a person to whom this section applies.  TEA shall examine the CHRI of the person and notify the school if the person may not be hired or must be discharged under Education Code 22.085.

Employment Pending Review

After the required information is submitted, the person may begin employment, but that employment is conditional upon the review of that person’s CHRI by TEA and must be terminated if TEA makes a determination that the employee or applicant is ineligible for employment.

Criminal History

The school shall obtain all CHRI that relates to a person subject to this section through the Clearinghouse and shall subscribe to the CHRI of that person.  The school may require the person to pay any fees related to obtaining the CHRI.

Education Code 22.0833

SUBSTITUTE TEACHERS

Applicability

This section applies to a person who is a substitute teacher for the School or shared services arrangement.  For purposes of the CHRI review requirements, a “substitute teacher” is a teacher who is on call or on a list of approved substitutes to replace a regular teacher and has no regular or guaranteed hours.  A substitute teacher may be certified or noncertified.

Information to DPS and TEA

The School shall send or ensure that a person to whom this section applies sends to DPS information required for obtaining NCHRI, which may include fingerprints and photographs.

The School shall provide TEA with the name of a person to whom this section applies.  TEA shall examine the CHRI and certification records of the person and notify the School if the person:

  1. May not be hired or must be discharged as provided by Education Code 22.085; or
  2. May not be employed as a substitute teacher because the person’s educator certification has been revoked or is suspended.

Employment Pending Review

After the required information is submitted, the person may begin employment, but that employment is conditional upon the review of that person’s CHRI by TEA and must be terminated if TEA makes a determination that the employee or applicant is ineligible for employment.

Criminal History

The school shall obtain all CHRI that relates to a person to whom this section applies through the Clearinghouse.  The School may require the person to pay any fees related to obtaining the CHRI.
Education Code 22.0836

STUDENT TEACHERS

Applicability

This section applies to a person participating in an internship consisting of student teaching to receive a teaching certificate.

Criminal History

A student teacher may not perform any student teaching until:

  1. The student teacher has provided to the School a driver’s license or another form of identification containing the person’s photograph issued by an entity of the United States government; and
  2. The School has obtained from DPS all CHRI that relates to a student teacher.  The School may also obtain CHRI relating to a student teacher from any other law enforcement agency, criminal justice agency, or private consumer reporting agency.  The School may require a student teacher to pay any costs related to obtaining the CHRI.

Education Code 22.0835

COORDINATION OF EFFORTS

TEA, SBEC, the School, and a shared services arrangement may coordinate as necessary to ensure that criminal history reviews authorized or required under Education Code Chapter 22, Subchapter C are not unnecessarily duplicated.  Education Code 22.0833(h)

ALL OTHER EMPLOYEES

The School shall obtain CHRI that relates to a person who is not subject to an NCHRI review under Education Code Chapter 21, Subchapter C and who is an employee of:

  1. The School; or
  2. A shared services arrangement, if the employee’s duties are performed on school property or at another location where students are regularly present.

The School may obtain the CHRI from:

  1. DPS;
  2. A law enforcement or criminal justice agency; or
  3. A private consumer reporting agency.

Education Code 22.083(a), (a-1), (c); Gov’t Code 411.097

CONFIDENTIALITY OF RECORD

Criminal history record information obtained by the School, including any identification information that could reveal the identity of a person about whom CHRI is requested and information that directly or indirectly indicates or implies involvement of a person in the criminal justice system:

  1. Is for the exclusive use of the School; and
  2. May be disclosed or used by the School only if, and only to the extent, disclosure is authorized or directed by a statute, rule, or order of a court of competent jurisdiction.

For purposes of these confidentiality provisions, “criminal history record” information does not refer to any specific document provided by DPS, but to the information contained, wholly or partly, in a document’s original form or any subsequent form or use.

The School or an individual may not confirm the existence or nonexistence of CHRI to any person who is not eligible to receive the information.

Gov’t Code 411.084

CHRI obtained by the School, in the original form or any subsequent form, may not be released to any person except the individual who is the subject of the information, TEA, or SBEC, or by court order. The CHRI is not subject to disclosure under the Government Code Chapter 552 (Public Information Act).
An employee of the School may request from the School a copy of any CHRI related to that employee that the School has obtained from DPS, The School may charge a fee to provide the information, not to  exceed the actual cost of copying the CHRI.

Gov’t Code 411.097 (d) (f)

Destruction of Criminal History Record Investigation

The School shall destroy CHRI obtained from DPS on the earlier of:

  1. The date the information is used for the authorized purpose; or
  2. The first anniversary of the date the information was originally obtained.

Gov’t Code 411.097 (d)(3)

CONFIDENTIALITY OF INFORMATION OBTAINED FROM APPLICANT OR EMPLOYEE

The School may not release information collected about a person in order to obtain CHRI, including the person’s name, address, phone number, social security number, driver’s license number, other identification number, and fingerprint records, except:

  1. To comply with Government Code Chapter 22, Subchapter C (criminal records);
  2. By court order; or
  3. With the consent of the person who is the subject of the information.

In addition, the information is not subject to disclosure under Government Code Chapter 553 (Public Information act).

The School shall destroy the information not later than the first anniversary of the date the information is received.

Education Code 22.08391

SBEC NOTIFICATION

A superintendent shall promptly notify SBEC in writing by filing a report with the TEA staff within seven calendar days of the date the superintendent obtains or has knowledge of information indicating that an applicant for or holder of a certificate issued by SBEC has a reported criminal history. 

 “Reported criminal history” means information concerning any formal criminal justice system changes and dispositions.  The term includes arrests, detentions, indictments, criminal information, convictions, deferred adjudications, and probations in any state or federal jurisdiction.

Education Code 22.087; 19 TAC 249.14(d), .3(43) [See also DH]

Note:  For criminal record provisions regarding volunteers, see GKG. For provisions on employees of entities that contract with the School, see CJA.

DISCHARGE OF OR REFUSAL TO HIRE CONVICTED EMPLOYEES

The School shall discharge or refuse to hire an employee or applicant for employment if the School obtains information through a CHRI review that:

  1. The employee or applicant has been convicted of:
    1. A felony under Penal Code title 5;
    2. An offence requiring registration as a sex offender under Code of Criminal Procedure Chapter 62; or
    3. An offense under the laws of another state or federal law that is equivalent to an offense under paragraphs a or b; and
  2. At the time the offense occurred, the victim of the offense was under 18 years of age or was enrolled in a public school/

Exception

However, the School is not required to discharge or refuse to hire an employee or applicant if the person committed a felony and:

  1. The date of the offense is more than 30 years before:
    1. June 15, 2007, in the case of a person employed by the School as of that date; or
    2. The date the person’s employment will begin, in the case of a person applying for employment with the School after June 15, 2007; and
  2. The employee or applicant for employment satisfied all terms of the court order entered on conviction.

Certification to SBEC

Each school year, the superintendent shall certify to the Commissioner that the School has complied with the above provisions.

Sanctions

SBEC may impose a sanction on an educator who does not discharge an employee or refuse to hire an applicant if the educator knows or should have known, through a criminal history record information review, that the employee or applicant has been convicted of an offense described above.

Optional Termination

The School may discharge an employee if the School obtains information of the employee’s conviction of a felony or misdemeanor involving moral turpitude that the employee did not disclose to SBEC or to the School.  An employee so discharged is considered to have been discharged for misconduct for the purposes of Labor Code 207.044 (unemployment compensation).

Education Code 22.085 

TSBVI DIRECT ACCESS TO DPS RECORDS

The School is entitled to obtain criminal history record information maintained by the Department of Public Safety, the Federal Bureau of Investigation identification division or another law enforcement agency which relates to School employees, professional consultants and applicants for permanent, temporary, or consultative employment, or volunteer positions whose employment, or potential employment, or volunteer position with the School involves direct interactions with, or the opportunity to interact and associate with, the children or youth attending the School.

Criminal history record information obtained by the School under subsection (a) may not be released, or disclosed, to any person except on court order with the consent of the person who is the subject of the criminal history record information, or as provided by subsection (d).

The School shall destroy criminal history record information that relates to a person after the information is used for its authorized purpose.

The School may not provide the applicant, employee, professional consultant, or volunteer, with a copy of the respective criminal history record information obtained from the Department of Public Safety, Federal Bureau of Investigation identification division, or another law enforcement agency. The School may disclose to the applicant, employee, professional consultant, or volunteer, the dates and places of arrest, the offenses, and the dispositions contained in the respective criminal history record information.

The failure, or refusal, to provide a complete set of fingerprints, or a complete name on request, constitutes good cause for dismissal, or refusal to hire, as applicable, with regard to school employees, professional consultants, and applicants for permanent, temporary, or consultative employment, or volunteer positions whose employment, or potential employment, or volunteer position with the School, involves direct interactions with, or the opportunity to interact and associate with, the children, or youth, attending the School.

Government Code 411.098(a)-(e)

EMPLOYEE SELF-REPORTS OF CHARGES AND CONVICTIONS

Each TSBVI employee shall report to the Superintendent within seven days of when the employee becomes aware of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the employee for any 1) misdemeanor offense contained in Texas Penal Code Title V or Title VI, classified as a crime “against the person” or a crime “against the family”; and 2) any felony offense of which the employee has not previously notified the School or the Superintendent through written notification, records or employment application. See Texas Penal Code, Title V and Title VI

CONSUMER CREDIT REPORTS

Definitions

“Adverse action” includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.

“Consumer report” includes any information from a consumer reporting agency that is used or expected to be used as a factor in establishing the person’s eligibility for employment.

“Consumer reporting agency” is an agency that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly assembles or evaluated consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.

“Employment purposes” when used in connection with a consumer report means a report used for the purpose of evaluating a person for employment, promotion, reassignment, or retention as an employee.

15 U.S.C. 1681a

Obtaining Reports

The School may not procure a consumer report for employment purposes unless:

  1. The School has provided the applicant or employee a written disclosure that a consumer report may be obtained for employment purposes; and
  2. The applicant or employee has authorized in writing the procurement of the report.

Adverse Action

Before taking any adverse action based on the consumer report, the School shall provide the applicant or employee a copy of the consumer report and a written description of the person’s rights under the Fair Credit Reporting Act, as prescribed by the Federal Trade Commission.

15 U.S.C. 1681b(b)(2)

Disposal of Records

The School must properly dispose of a consumer report by taking reasonable measures to protect against unauthorized access to or use of the information.

“Dispose” includes discarding or abandoning the consumer report, or selling, donating, or transferring any medium, including computer equipment, upon which the consumer report is stored.

Examples of reasonable measures include:

  1. Burning, pulverizing, or shredding papers containing a consumer report so the information cannot practicably be read or reconstructed;
  2. Destroying or erasing electronic media containing a consumer report so that the information cannot practicably be read or reconstructed; or
  3. After due diligence, entering into and monitoring compliance with a contract with another party engaged in the business of record destruction to dispose of the consumer report.

16 C.F.R. 682.3

Adopted:          5/25/05
Amended:        11/18/05, 11/17/06, 3/28/08, 4/3/09, 9/25/09, 4/5/13
Reviewed:

RESTRICTION ON PUBLIC SERVANTS - PENAL CODE

"Public servant," for purposes of the following Penal Code provisions, includes a person elected, selected, appointed, employed, or otherwise designated as an officer, employee, or agent of government, even if the person has not yet qualified for office or assumed his or her duties. Penal Code 1.07(a)(41)(A)

Bribery

  1. A public servant shall not intentionally or knowingly offer, confer, agree to confer on another, solicit, accept, or agree to accept a benefit:
    1. As consideration for the public servant's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant.
    2. As consideration for a violation of a duty imposed on the public servant by law.
    3. That is a political contribution as defined by Title 15 of the Election Code or an expenditure made and reported as a lobbying expense in accordance with Government Code, Chapter 305, if the benefit was offered, conferred, solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion, if such exercise of official discretion would not have been taken or withheld but for the benefit.

"Benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct and substantial interest. Penal Code 36.01(3), 36.02

Illegal Gifts

  1. A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions shall not solicit, accept, or agree to accept any benefit from a person the public servant knows is interested in or likely to become interested in any such transactions of the district, unless a statutory exception applies. Penal Code 36.08(d)

A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax exempt charitable organization formed for educational, religious, or scientific purposes. Penal Code 36.08(i)

Exceptions

“Illegal Gifts to Public Servants” does not apply to:

    1. A fee prescribed by law to be received by a public servant or any other benefit to which the public servant is lawfully entitled or for which he or she gives legitimate consideration in a capacity other than as a public servant;
    2. A gift or other benefit conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the recipient;
    3. A benefit to a public servant required to file a statement under Chapter 572, Government Code, or a report under Title 15, Election Code, that is derived from a function in honor or appreciation of the recipient if:
      1. The benefit and the source of any benefit in excess of $50 is reported in the statement; and
      2. The benefit is used solely to defray the expenses that accrue in the performance of duties or activities in connection with the office which are nonreimbursable by the state or political subdivision;
    4. A political contribution as defined by Title 15, Election Code;
    5. An item with a value of less than $50, excluding cash or a negotiable instrument as described by Business and Commerce Code 3.104;
    6. An item issued by a governmental entity that allows the use of property or facilities owned, leased, or operated by the governmental entity; or
    7. Food, lodging, transportation, or entertainment accepted as a guest and, if the donee is required by law to report those items, reported by the donee in accordance with that law.

    Penal Code 36.10

    Honoraria and Expenses

    1. A public servant commits a Class A misdemeanor offense if the public servant solicits, accepts, or agrees to accept an honorarium in consideration for services that the public servant would not have been requested to provide but for the public servant's official position or duties. However, a public servant is not prohibited from accepting transportation and lodging expenses or meals in connection with a conference or similar event in which the public servant renders services, such as addressing an audience or engaging in a seminar, to the extent those services are more than merely perfunctory. Penal Code 36.07

    Abuse of Public Employment

    1. A public servant shall not, with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly violate a law relating to the public servant's office or employment, or misuse district property, services, personnel, or any other thing of value, that has come into his or her custody or possession by virtue of his or her office or employment. Penal Code 39.02(a)

    "Law relating to the public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly imposes a duty on the public servant or governs the conduct of the public servant. Penal Code 39.01(1)

    "Misuse" means to deal with property contrary to:

      1. An agreement under which the public servant holds the property;
      2. A contract of employment or oath of office of a public servant;
      3. A law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
      4. A limited purpose for which the property is delivered or received.

    Penal Code 39.01(2)

    INSTRUCTIONAL MATERIALS VIOLATIONS - COMMISSIONS

    An administrator or teacher commits an offense if the administrator or teacher receives any commission or rebate on any instructional materials or technological equipment used in the schools with which the person is associated. Education Code 31.152(a)

    INSTRUCTIONAL MATERIALS VIOLATIONS – CONFLICT

    An administrator or teacher commits an offense if the administrator or teacher accepts a gift, favor, or service that:

    1. Is given to the person or the person's school;
    2. Might reasonably tend to influence the person in the selection of instructional materials or technological equipment; and
    3. Could not be lawfully purchased with funds from the state instructional materials fund.

    "Gift, favor, or service" does not include staff development, in-service, or teacher training; or
    instructional materials, such as maps or worksheets, that convey information to the student or otherwise contribute to the learning process.
    Education Code 31.152(b)-(d)

    INSTRUCTIONAL MATERIALS VIOLATIONS - PURCHASE AND DISTRIBUTION

    A person commits a Class C misdemeanor offense if the person knowingly violates any law providing for the purchase or distribution of free instructional materials for the public schools. Education Code 31.153

    HOLDING CIVIL OFFICE

    No person shall hold or exercise at the same time more than one civil office of emolument, except for offices listed in the constitutional provision, unless otherwise specifically provided. Tex. Const., Art. XVI, Sec. 40(a); State v. Pirtle, 887 S.W.2d 291 (Tex. Ct. Crim. App. 1994); Atty. Gen. Op. DM-212 (1993)

    Individuals who receive all or part of their compensation either directly or indirectly from funds of the state of Texas and who are not state officers shall not be barred from serving as members of the governing bodies of school districts (other than those in which they are employed), cities, towns, or other local governmental districts. Such individuals may not receive a salary for serving as members of such governing bodies. Tex. Const., Art. XVI, Sec. 40(b); Atty. Gen. Op. DM-55 (1991)

    PERSONAL SERVICES PERFORMED BY SUPERINTENDENT

    The School’s superintendent may not receive any financial benefit for personal services performed by the superintendent for any business entity that conducts or solicits business with the School. Any financial benefit received by the superintendent for performing personal services for any other entity, including a school district, open-enrollment charter school, regional education service center, or public or private institution of higher education, must be approved by the board on a case-by-case basis in an open meeting. The receipt of reimbursement for a reasonable expense is not considered a financial benefit.  Education Code 11.201(e)

    Adopted:         3/7/80
    Amended:         10/25/85, 1/26/90, 9/27/90, 11/30/90, 1/21/94, 3/25/94, 11/17/95,5/24/96, 1/24/02, 11/22/02, 1/28/05, 5/25/05, 1/26/07, 11/20/09, 4/5/13
    Reviewed:       11/6/98

GENERAL PROVISIONS

A person who is legally employed by more than one Texas state agency, or institution of higher education, may not receive benefits from the state in excess of those provided for one full-time employee. The person is subject to the following provisions and must be informed of them before the person becomes employed by more than one agency, or institution.

  1. Separate vacation and sick leave records must be maintained for each employment. When the person terminates from one employment, the person's leave balances that were accrued under that employment may not be transferred to the remaining employment.
  2. The person accrues state service credit for all purposes as if the employee had only one employment.
  3. The total state contribution towards the person's group insurance is limited to the amount specified in the General Appropriations Act for a full-time active employee.
  4. Overtime compensation accrues to an employment independently of every other employment with the following exception. If the person is subject to the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA) in an employment, the employing agencies and institutions must ensure that the person is compensated for all combined time worked in excess of 40 hours per week according to the FLSA overtime provisions. The agencies and institutions shall coordinate to determine which agency, or institution, is responsible for ensuring that the employee is properly compensated according to those provisions.
  5. An employing agency or institution may not use multiple employments of an employee within the same agency or institution for the purpose of:  (a) paying the employee for working more than 40 hours in a week instead of earning compensatory time in accordance with state law, or (b) paying the employee a greater salary than is allowed for either of the employee’s positions.
  6. The person must inform the person’s employing state agencies, or institutions of higher education, before accepting an additional employment with another agency, or institution.
  7. The Texas School for the Blind and Visually Impaired will not hire any individual who is already employed by another Texas state agency or institution in a non-exempt position.

Texas Government Code 667.001-667.007

Adopted:         5/8/81

Amended:       11/11/83, 1/21/94, 11/17/95, 9/26/97, 3/26/02, 11/18/16

Reviewed:       4/5/13

 

DEFINITION

In this policy, the term "appoint" includes appointing, confirming the appointment of, and voting to appoint or confirm the appointment of a person.

NEPOTISM PROHIBITED

Except as provided by this policy, a public official may not appoint a person to a position that is to be directly or indirectly compensated from public funds or fees of office if:

  1. The person is related to the public official by blood (consanguinity) within the third degree or by marriage (affinity) within the second degree [see below]; or
  2. The public official holds the appointment or confirmation authority as a member of a local board and the person is related to another member of the board by blood or marriage within a prohibited degree.

Gov't Code 573.002, 573.041; Atty. Gen. Op. JC-0184 (2000)

INDEPENDENT CONTRACTOR

The nepotism law governs the hiring of an individual, whether the employee is hired as an individual or an independent contractor. Atty. Gen. Op. DM-76 (1992)

SUPERINTENDENT

To the extent a board has delegated final hiring authority to a superintendent to select personnel, the superintendent is a "public official" for purposes of the nepotism laws. Atty. Gen. Op. GA-123 (2003)[See BBFA]

With respect to noncontractual employees [see DC]:

  1. The superintendent is a public official for purposes of the nepotism prohibitions only with respect to a decision made under that delegation of authority; and
  2. Each member of the board remains subject to the nepotism prohibitions with respect to all School employees.

For purposes of this provision, a person hired by the School before September 1, 2007, is considered to have been in continuous employment [see CONTINUOUS EMPLOYMENT, below] and is not prohibited from continuing employment with the School subject to the abstention requirements.

Education Code 11.1513(f)

COMPENSATION OF PROHIBITED EMPLOYEE

A public official may not approve an account or draw or authorize the drawing of a warrant or order to pay the compensation of an ineligible person if the official knows the person is ineligible. Gov't Code 573.083

CONSANGUINITY

Two persons are related to each other by consanguinity (blood) if one is a descendant of the other or if they share a common ancestor. An adopted child is considered to be a child of the adoptive parents. Gov't Code 573.022

An individual's relatives within the third degree by consanguinity are the individual's:

  1. Parent or child (first degree);
  2. Brother, sister, grandparent, or grandchild (second degree); and
  3. Great-grandparent, great-grandchild, aunt or uncle (who is a sibling of a parent of the person), nephew or niece (who is a child of a brother or sister of the person) (third degree).

Gov't Code 573.023

Half-blood Relatives

There is no distinction under the nepotism statute between half-blood and full-blood relations. Thus, half-blood relationships fall within the same degree as those of the full blood. Atty. Gen. Op. LO-90-30 (1990)

AFFINITY

Two persons are related to each other by affinity if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other person.

The ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage unless a child of the marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives. This provision applies to a school board member only until the youngest child of the marriage reaches the age of 21 years.

Gov't Code 573.024

A husband and wife are related to each other in the first degree by affinity. For other relationships, the degree of relationship by affinity is the same as the degree of the underlying relationship by consanguinity. For example, if two persons are related to each other in the second degree by consanguinity, the spouse of one of the persons is related to the other person in the second degree by affinity.

A person's relatives within the second degree by affinity are:

  1. The persons spouse;
  2. Anyone related by consanguinity to the person's spouse within the first or second degree; or
  3. The spouse of anyone related to the person by consanguinity within the first or second degree.

Gov't Code 573.025

EFFECT OF TRUSTEE RESIGNATION

All public officers shall continue to perform the duties of their offices until their successors shall be duly qualified, i.e., sworn in. Until the vacancy created by a trustee's resignation is filled by a successor, the trustee continues to serve and have the duties and powers of office, and a relative within a prohibited degree of relationship is barred from employment. Tex. Const., Art. XVI, Sec. 17; Atty. Gen. Ops. JM-636 (1987), DM-2 (1991), O-6259 (1945)

EXCEPTIONS

Continuous Employment (Grandfather Clause)

The nepotism prohibitions do not apply to the appointment of a person to a position if the person is employed in the position immediately before the election or appointment of the public official to whom the person is related in a prohibited degree and that prior employment is continuous for at least:

  1. Thirty days, if the public official is appointed; or
  2. Six months, if the public official is elected.

Gov't Code 573.062(a)

Retirees

A teacher who has retired from a full-time, certified teacher position has broken his or her employment with the School and does not qualify for the continuous-employment exception to the nepotism laws. Atty. Gen. Op. JC-0442 (2001)

For purposes of calculating the appropriate date for the applicability of the continuous-employment exception, a superintendent with final authority to select personnel is an appointed public official. Atty. Gen. Op. GA-0177 (2004)

Abstention

If an employee continues in a position under this exception, the public official to whom the employee is related in a prohibited degree may not participate in any deliberation or voting on the appointment, reappointment, employment, reemployment, change in status, compensation, or dismissal of the employee, if the action applies only to the employee and is not taken regarding a bona fide class or category of employees. Gov't Code 573.062(b)

A "change in status" includes a reassignment within an organization, whether or not a change in salary level accompanies the reassignment. Atty. Gen. Op. JC-0193 (2000)

For an action to be "taken with respect to a bona fide category of employees," the officeholder's action must be based on objective criteria, which do not allow for the preference or discretion of the officeholder. Atty. Gen. Op. DM-46 (1991)

Substitute Teacher

The nepotism prohibitions do not apply to appointment or employment of a substitute teacher. Gov't Code 573.061

TRADING

A public official may not appoint a person to a position in which the person's services are under the public official's direction or control and that is to be compensated directly or indirectly from public funds or fees of office if:

  1.  
    1. The person is related to another public official within the prohibited degree; and
    2. The appointment would be carried out in whole or in partial consideration for the other public official's appointing a person who is related to the first public official within a prohibited degree.

Gov't Code 573.044

FEDERAL FUNDS

The rules against nepotism apply to employees paid with public funds, regardless of the source of those funds. Thus, the rules apply in the case of a teacher paid with funds from a federal grant. Atty. Gen. L.A. No. 80 (1974)

PENALTIES

An individual who violates the nepotism prohibitions shall be removed from his or her position. Gov't Code 573.081, 573.082.

An individual who violates Government Code 573.041 (Prohibition on Public Officials), 573.062(b) (see CONTINUOUS EMPLOYMENT and ABSTENTION, above), or 573.083 (see COMPENSATION OF PROHIBITED EMPLOYEE) commits an offense involving official misconduct. Gov't Code 573.084

RELATIVES OF SUPERVISORY PERSONNEL

No employee shall be directly, or indirectly, supervised by an individual to whom he, or she, is related by consanguinity within the third degree, or by affinity within the second degree.

Adopted: 7/13/79
Amended: 1/11/80, 5/14/82, 6/29/84, 7/12/85, 10/25/85, 9/26/86, 11/12/87, 1/26/89, 5/28/92, 1/29/93, 1/21/94, 3/25/94, 11/18/94, 11/15/96, 1/30/04, 1/28/05, 1/25/08
Reviewed: 5/31/01, 4/5/13

Adopted: 6/1/89
Amended: 5/28/92
Reviewed: 1/21/94, 11/15/96, 5/31/01

These illustrations depict the relationships that violate the nepotism law.

CONSANGUINITY (BLOOD KINSHIP)

Board member is prospective employee's:

FIRST DEGREE

Parent - Child

SECOND DEGREE

Grandparent - Grandchild - Sister/Brother

THIRD DEGREE

Great Grandparent - Great Grandchild - Aunt/Uncle - Niece/Nephew

AFFINITY (MARRIAGE KINSHIP)

Board member's spouse is the prospective employee.

OR

Board member's spouse is prospective employee's:

OR

Prospective employee's spouse is the Board member's:

FIRST DEGREE

Parent - Child

SECOND DEGREE

Grandparent - Grandchild - Sister/Brother

NOTE: The spouses of two persons related by blood are not, by that fact, related. The affinity chart supposes only one affinity relationship between the Board member and prospective employee through either of their spouses.

Adopted: 6/1/89
Amended: 5/28/92
Reviewed: 1/21/94, 11/15/96, 5/31/01