Note: This policy addresses prohibition against discrimination, harassment, and retaliation with respect to compensation, terms, conditions, or privileges of employment. See Policy DGBA for filing complaints. For legally referenced material relating to prohibition against discrimination in hiring and discharging employees, see Policy DAA. For provisions related to harassment of students, including the TSBVI’s response to sexual harassment as defined by Title IX, see Policy FFH. For reporting requirements related to child abuse and neglect, see Policy FFG.
UNLAWFUL EMPLOYMENT DISCRIMINATION
It is an unlawful employment practice for TSBVI to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s:
- Race, color, or national origin;
- Disability; or
- Genetic information [see Policy DAB].
Section 1981 of the Civil Rights Act of 1866 (Section1981)—race.p 42 U.S.C. 1981
Title VII of the Civil Rights Act of 1964 (Title VII)—race, color, religion, sex, and national origin. 42 U.S.C 2000e et seq.
Age Discrimination in Employment Act of 1967 (ADEA)—age, over 40. 29 U.S.C. 621 et seq.
Section 504 of the Rehabilitation Act of 1973 (Section 504)—disability in programs receiving federal funds. 29 U.S.C. 794
Title I of the Americans with Disabilities Act of 1990 (ADA)—disability. 42 U.S.C. 12101 et seq.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)—genetic information. 42 U.S.C. 2000ff et seq.
Texas Commission on Human Rights Act (TCHRA)—race, color, disability, religion, sex, national origin, age, and genetic information. Labor Code 21.051, .402
State policy on employment of persons with disabilities. Human Resources Code 121.003(f)
PROHIBITION ON RETALIATION
TSBVI may not discriminate against any employee or applicant for employment because the employee or applicant opposes a discriminatory practice, makes or files a charge, files a complaint, testifies, assists, or participates in a manner in an investigation, proceeding or hearing related to an unlawful, discriminatory employment practice. 29 U.S.C. 623(d) (ADEA); 42 U.S.C. 2000e-3(a) (Title VII); 42 U.S.C. 12203 (ADA); Labor Code 21.055
Harassment on the basis of a protected characteristic is a violation of Title VII. TSBVI has an affirmative duty, under Title VII, 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 1604.11(a), 1606.8(a)
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
29 CFR. 1604.11(a), (f), (g); Labor Code 21.141
An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring; and fail to take immediate and appropriate corrective action. Labor Code 21.142
Same-sex sexual harassment constitutes sexual harassment. Oncale v. Sundowner Offshore Services, Inc.,523 U.S. 75 (1998)
Criminal Offense – Official Oppression
A public servant acting under color of the public servant’s office or employment commits an offense if the public servant intentionally subjects another to sexual harassment.
A public servant acts under color of the public servant’s office or employment if the person acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
“Sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
Penal Code 39.03(a)(3), (b), (c)
TSBVI commits an unlawful employment practice if sexual harassment of an unpaid intern occurs and the School or its agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring, and fail to take immediate and appropriate corrective action. Labor Code 21.1065
Prohibition on Use of Public Funds
The School may not use public money to settle or otherwise pay a sexual harassment claim made against a person who is an elected or appointed member of the board or an officer or employee of the district. Local Gov’t Code 180.008
NATIONAL ORIGIN HARASSMENT
Ethnic slurs and other verbal or physical conduct relating to an individual’s national origin constitute harassment when this conduct:
- Has the purpose or effect of creating an intimidating, hostile or offensive working environment;
- Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
- Otherwise adversely affects an individual’s employment opportunities.
29 CFR 1606.08(b)
Severe and Pervasive
Harassment violates Title VII if it is sufficiently severe and pervasive to alter the conditions of employment. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)
Title VII does not prohibit all verbal and physical harassment in the workplace. For example, harassment between men and women is not automatically unlawful sexual harassment merely because the words used have sexual content or connotations. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
The School should take all steps necessary to prevent unlawful harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate penalties, informing employees of their right to raise and how to raise the issue of illegal harassment under Title VII, and developing methods to sensitize all concerned.
29 CFR 1604.11(f)
Employees shall not engage in conduct constituting sexual or other illegal discrimination or harassment of other employees. Employees who believe they have been sexually harassed by other employees are encouraged to come forward with complaints. School administrators shall investigate promptly all allegations of harassment of employees by other employees, and the designated school officials shall take immediate and appropriate corrective action if prohibited conduct occurs.
The School shall provide employee training, including information regarding the School’s policies and procedures to prevent employment discrimination as follows:
- Equal employment opportunity and training to prevent sexual harassment, including other forms of illegal harassment to all new employees within 30 days of hire at the New Employee Orientation program; and
- Refresher training in equal employment opportunity and sexual harassment to all employees every two years thereafter.
Each employee who participates in an initial or refresher training program shall be required to sign a statement verifying attendance at or completion of the training program or have their completion tracked in a learning management system (currently Bridge). Any hard copy statement shall be maintained in the employee’s personnel file.
Texas Labor Code 21.010
Responsibility for Harassment by Third Parties
TSBVI is responsible for acts of unlawful harassment by fellow employees and by nonemployees if the School, its agents, or its supervisory employees knew or should have known of the conduct, unless the School takes immediate and appropriate corrective action. 29 CFR 1604.11(d), (e), 1606.8(d), (e)
When no tangible employment action is taken, TSBVI may raise the following affirmative defense:
- That TSBVI exercised reasonable care to prevent and promptly correct any harassing behavior; and
- That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, (1998)
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 TSBVI’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
Burden on Free Exercise
TSBVI 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
The prohibition against discrimination because of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. TSBVI shall treat women affected by pregnancy, childbirth, or related medical conditions the same as other employees 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
Gay and Transgender
The prohibition against discrimination because of sex includes discrimination on the basis of an individual being gay or transgender. Bostock v. Clayton County, Georgia, 17-1618, 2020 WL 3146686, (U.S. June 15, 2020)
TSBVI 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)
The prohibition against discrimination on the basis of age applies only to discrimination against an individual 40 years of age or older. 29 U.S.C. 631; Labor Code 21.101
Bona Fide Employee Benefit Plan
TSBVI 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
TSBVI 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); 29 CFR 1630.4(b); Labor Code 21.051
In addition, as a recipient of assistance under the Individuals with Disabilities Education Act (IDEA), TSBVI must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted by the IDEA. 34 CFR 300.177(b)
Discrimination Based on Lack of Disability
The ADA and the TCHRA 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); 29 CFR 1630.4(b); Labor Code 21.005(c)
Definition of Disability
- An actual disability: a physical or mental impairment [see the definition, below] that substantially limits one or more of an individual’s major life activities;
- A record of having such an impairment; or
- 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.
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), (j)(1); Labor Code 21.002, .0021
Physical or Mental Impairment
“Physical or mental impairment” means:
- 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
- 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 1630.2(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 1630.2(i); Labor Code 21.002
“Qualified individual” means an individual who:
- Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
- With or without reasonable accommodation, can perform the essential functions of such position. Consideration shall be given to TSBVI’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); 29 CFR. 1630.2(m)
TSBVI is required, absent undue hardship, to make a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” or “record of disability” prongs. 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 1630.2(o)(4), .9; 29 U.S.C. 794; 34 CFR 104.11; Labor Code 21.128 [See Policy DBB regarding medical examinations and inquiries under the Americans with Disabilities Act]
“Reasonable accommodation” includes:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- 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
TSBVI 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 a district acts on the basis of such use.
TSBVI 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) [See Policy DHE]
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)
It is unlawful for TSBVI to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the district, is shown to be job related for the position in question and is consistent with business necessity.
29 CFR. 1630.10(a)
Direct Threat to Health or Safety
As a qualification standard, TSBVI 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(r); Labor Code 21.002(6)(B)
Vision Standards and Tests
TSBVI 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 district, is shown to be job-related for the position in question and consistent with business necessity. 42 U.S.C. 12113(c); 29 CFR 1630.10(b); Labor Code 21.115(b)
TSBVI 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 the handling of food. 42 U.S.C. 12113(e); 29 U.S.C. 705(20)(D); 29 CFR 1630.16(e); Labor Code 21.002(6)(B)
TSBVI is subject to the jurisdiction of Title I of the ADA (employment discrimination) or 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] 28 CFR 35.140
No person, on the basis of sex, shall be excluded from participation in, denied the benefits of, or be subjected to discrimination by a district receiving federal financial assistance. 20 U.S.C. 1681 [See Policy FB, FFH]
TSBVI may not pay an employee at a rate less than the rate the School 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) (Equal Pay Act); 34 CFR 106.54 (Title IX); Gov’t Code 659.001 (Texas Equal Pay Act)
TSBVI receives federal financial assistance and employs 15 or more persons; therefore, its grievance procedures 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), .11
TSBVI employs 50 or more persons and has adopted and published grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the ADA. 28 CFR 35.107, .140
TSBVI receives federal financial assistance and has adopted and published grievance procedures providing for prompt and equitable resolution of employee complaints alleging any action prohibited by Title IX. 34 CFR 106.8(c); North Haven Board of Education v. Bell, 456 U.S. 512 (1982) [For legally referenced material relating to Title IX grievance procedures, see Policy FFH(LEGAL).]
TSBVI has designated at least one person to coordinate its efforts to comply with Section 504 of the Rehabilitation Act. The School’s Section 504 notification [see Policy DAA] also identified the responsible employee so designated. 34 CFR 104.7(a), .8(a)
TSBVI employs 50 or more persons and has designated at least one employee to coordinate its efforts to comply with and carry out its responsibilities under the ADA, including any investigation of any complaint communicated to it alleging its noncompliance with the ADA or alleging any actions that would be prohibited by the ADA. The School shall make available to all interested individuals the name, office address, and telephone number of the employee or employees so designated. 28 CFR 35.107(a)
TSBVI has designated at least one employee to coordinate its efforts to comply with and carry out its responsibilities under the Age Discrimination in Employment Act (ADEA), including investigation of any complaints that the school receives alleging any actions that are prohibited by the ADEA. The School shall notify its employees of the identity of the responsible employee by name or title, address, and telephone number. 34 CFR 110.25(a), (b) [See Policy DAA]
TSBVI has designated and authorized at least one employee to coordinate its efforts to comply with its responsibilities under Title IX, serve as the “Title IX Coordinator.” The School must notify applicants for admission and employment, students, parents or legal guardians, employees, and all professional organizations holding professional agreements with the school of the name or title, office address, electronic mail address, and telephone number of the employee(s) so designated. 34 CFR 106.8(a) [See Policy DAA]
An employee who believes he, or she, has been, or is being subjected to any form of sexual or illegal discrimination, harassment, or discrimination shall have the following options with respect to pursuing his or her complaint:
- The employee should promptly bring the matter to the attention of his/her immediate supervisor in accordance with the School’s grievance policy, Policy DGBA, with the following modification: The timeline within which the employee should file his or her formal complaint is extended to a 30-day period after the investigation is concluded by HR. However, no procedure or step in that policy shall have the effect of requiring the employee alleging harassment to present the matter to a person who is the subject of the complaint. The complaining employee is protected from being retaliated against for reporting the misconduct. If this process results in a finding of sexual or other illegal harassment or discrimination, the employee who has engaged in the illegal conduct shall be subject to disciplinary action in accordance with Policy DCDB; or
- The employee may promptly notify the Director of Human Resources who serves as the Title VII and Title IX coordinator for employee issues. The Director of Human Resources shall undertake prompt, thorough, confidential (to the degree permitted by law), and impartial investigative measures as are deemed necessary to determine whether illegal harassment or other form of discrimination has occurred, and shall inform the Superintendent. The Superintendent, who may seek the advice of legal counsel, shall then determine the appropriate disciplinary action against the employee who has engaged in sexual or other illegal harassment.
- 34 CFR 106.8; .45(b)(1)(iii; Texas Labor Code 21.142)
Amended: 5/23/07, 11/20/15, 6/1/18, 8/7/20, 5/27/21, 2/3/23