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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 or any other legally protected status:

  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. [See DAB]

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) 42 U.S.C. 2000ff et seq. Genetic Information Nondiscrimination Act (GNRA); 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, age, 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, age, disability, national origin, and genetic information.  42 U.S.C. 2000e et seq.; 29 CFR 1606.8(a), 1604.11 29 CFR 1681  [See DIA]

RETALIATION

The School may not retaliate 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); 29 CFR 1681 (Title IX); 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 [See DIA]

NOTICES

The School shall post in places visible to employees and applicants the required notice from the Equal Employment Opportunity Commission relating to 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

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 business related factor other than sex.   29 U.S.C. 206(d); 34 CFR 106.54; Lilly Ledbetter Fair Pay Act of 2009, 429 U.S.C. 2000a; Title IX 20 U.S.C. Section 1681(a); 34 CFR Section 106.1 et seq.

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), as amended, 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); 42 U.S.C 12112; 29 CFR 1630.4(b); 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 or past history 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 1630.2(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 1630.3(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); 29 CFR 1630.2(m)

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   [See Procedure A.2.1.6.]

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.  29 CFR 1630.3

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) [See DHE, DI-E]

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(r); 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] [See Policy FBA28 CFR 35.140

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

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. was 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 bankruptcy laws.

11 U.S.C.A. § 525(a)

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 COORDINATORs

The School shall designate at least one employee to coordinate its efforts to comply with Title IX, Section 504, the Age Discrimination 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:  Cheryl Williams, HR Director

OFFICE ADDRESS: 1100 W. 45th Street

OFFICE TELEPHONE: (512)206-9132

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

ASSISTANT COORDINATOR FOR STUDENT MATTERS:  Valerie Perwein, Director of Special Education, (512)206-9281

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:  Cheryl Williams, 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:  Cheryl Williams, HR Director

OFFICE ADDRESS:  1100 W. 45th Street

OFFICE TELEPHONE:  (512)206-9132

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, 5/31/19

Reviewed: