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OFFICIAL OP

Note:  This policy addresses harassment of TSBVI employees.  For legally referenced material relating to discrimination and retaliation, see DAA(LEGAL).  For harassment of students, see FFH.  For reporting requirements related to child abuse and neglect, see FFG.

OFFICIAL OPPRESSION

A public official commits a Class A misdemeanor if, while acting in his or her official or employment capacity, the official intentionally (a) subjects another to mistreatment, arrest, detention, search, seizure or dispossession, or (b) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, knowing such conduct is unlawful or (c) intentionally subjects another to 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

HARASSMENT OF EMPLOYEES

Harassment on the basis of a protected characteristic is a violation of the federal anti-discrimination laws.  TSBVI has an affirmative duty, under Title VII, to maintain a working environment free of harassment on the basis of sex, age, race, color, religion, national origin and disability.  Claims of harassment based on characteristics other than sex are evaluated under the same legal standard as applied to sexual harassment claims.

42 U.S.C. 2000e, et seq.; 29 CFR 1601, 1606.8, 1604.11, 1625, 1626, 1640 Burlington Industries v. Ellerth, 524 US 742 (1998), Faragher v. City of Boca Raton, 524 US 775, (1998)

Harassment violates Title VII if it is sufficiently severe and pervasive to alter the conditions of employment. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors. (1999), Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)

Title VII does not prohibit all verbal and physical banter 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)

Hostile Environment

Verbal or physical conduct based on a person's sex, race, color, religion, or national origin constitutes unlawful harassment when the conduct:

  1. Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
  2. Has the purpose or effect of unreasonably interfering with an individual's work performance; or
  3. Otherwise adversely affects an individual's employment opportunities.

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Nat’l Railroad Passenger Corp. v. Morgan; 536 U.S. 101 (2002); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); 29 CFR 1604.11, 1605, 1606

Quid Pro Quo

Conduct of a sexual nature also constitutes harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

29 CFR 1604.11

Same-Sex Sexual Harassment

Same-sex sexual harassment constitutes sexual harassment.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

HARASSMENT POLICY

The School should take all steps necessary to prevent sexual 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 harassment under Title VII, and developing methods to sensitize all concerned.  29 CFR 1604.11(f)

Prohibited Conduct

Employees shall not engage in conduct constituting sexual or other illegal 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 prompt and appropriate disciplinary action against employees found to have engaged in conduct constituting sexual or other illegal harassment of employees.

Training

The School shall provide employee training, including information regarding the School’s policies and procedures to prevent employment discrimination as follows:

  1. 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
  2. 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.  This statement shall be maintained in each employee’s personnel file.

Texas Labor Code 21.010

CORRECTIVE ACTION

The School 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, the School may raise the following affirmative defense:

  1. That the School exercised reasonable care to prevent and promptly correct any harassing behavior; and
  2. 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)

COMPLAINT PROCEDURE

An employee who believes he, or she, has been, or is being subjected to any form of sexual or illegal harassment shall have the following options with respect to pursuing his, or her, complaint:

  1. The employee may bring the matter to the attention of his/her immediate supervisor in accordance with the School's grievance policy, DGBA, with the following modification:  The time line within which the employee must meet with his/her immediate supervisor may be extended from the 14 day period to a 30 day period when the grievance alleges sexual or other illegal harassment.  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.  If this process results in a finding of sexual or other illegal harassment, the employee who has engaged in  the illegal harassment shall be subject to disciplinary action in accordance with policy DCDB; or
  2. Within 30 days of the incident, or series of incidents causing the complaint, the employee may notify the Director of Human Resources who serves as the Title VII coordinator for employee issues.  The Director of Human Resources shall undertake such confidential investigative measures as are deemed necessary to determine whether illegal harassment has occurred, and shall inform the Superintendent of the results.  The Superintendent shall then determine and take appropriate disciplinary action against the employee who has engaged in sexual or other illegal harassment.

Harassment of unpaid interns

The School commits an unlawful employment practice if sexual harassment of an unpaid intern occurs and the district 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

Adopted:         1/27/06

Amended:       5/23/07, 11/20/15, 6/1/18

Reviewed:

PRESSION

A public official commits a Class A misdemeanor if, while acting in his or her official or employment capacity, the official intentionally subjects another to 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)

HARASSMENT OF EMPLOYEES

Harassment on the basis of a protected characteristic is a violation of the federal anti-discrimination laws. A district 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 1606.8(a), 1604.11

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)

Hostile Environment

Verbal or physical conduct based on a person's sex, race, color, religion, or national origin constitutes unlawful harassment when the conduct:

  1. Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
  2. Has the purpose or effect of unreasonably interfering with an individual's work performance; or
  3. Otherwise adversely affects an individual's employment opportunities.

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Nat’l Railroad Passenger Corp. v. Morgan; 536 U.S. 101 (2002); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); 29 CFR 1604.11, 1606.8

Quid Pro Quo

Conduct of a sexual nature also constitutes harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

29 CFR 1604.11(a)

Same-Sex Sexual Harassment

Same-sex sexual harassment constitutes sexual harassment.  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

HARASSMENT POLICY

The School should take all steps necessary to prevent sexual 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 harassment under Title VII, and developing methods to sensitize all concerned.  29 CFR 1604.11(f)

Prohibited Conduct

Employees shall not engage in conduct constituting sexual 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 sexual harassment of employees by other employees, and the designated school officials shall take prompt and appropriate disciplinary action against employees found to have engaged in conduct constituting sexual harassment of employees.

Training

The School shall provide employee training, including information regarding the School’s policies and procedures relating to employment discrimination as follows:

  1. Equal employment opportunity and sexual harassment training to all new employees within 30 days of hire at the New Employee Orientation program; and
  2. 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. This statement shall be maintained in each employee’s personnel file.

Texas Labor Code 21.010

CORRECTIVE ACTION

The School 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, the School may raise the following affirmative defense:

  1. That the School exercised reasonable care to prevent and promptly correct any harassing behavior; and
  2. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, (1998)

COMPLAINT PROCEDURE

An employee who believes he, or she, has been, or is being subjected to any form of sexual harassment shall have the following options with respect to pursuing his, or her, complaint:

  1. The employee may bring the matter to the attention of his/her immediate supervisor in accordance with the School's grievance policy, DGBA, with the following modification: The time line within which the employee must meet with his/her immediate supervisor may be extended from the 14 day period to a 30 day period when the grievance alleges sexual harassment. 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. If this process results in a finding of sexual harassment, the employee who has engaged in sexual harassment shall be subject to disciplinary action in accordance with policy DCDB; or
  2. Within 30 days of the incident, or series of incidents causing the complaint, the employee may notify the Director of Human Resources who serves as the Title IX coordinator for employee issues. The Director of Human Resources shall undertake such confidential investigative measures as are deemed necessary to determine whether sexual harassment has occurred, and shall inform the Superintendent of the results. The Superintendent shall then determine and take appropriate disciplinary action against the employee who has engaged in sexual harassment.

Adopted:          1/27/06
Amended:        5/23/07, 11/20/15
Reviewed: