I. The Law
A. Federal
Employment Discrimination statute
("Title VII") and Illinois Human Rights Act apply.
B. "Quid Pro
Qui" Harassment
1. Member
of protected group
2.
Subject to harassment
3.
Harassment was a term, condition or privilege of employment
4. Burden
shifts to employer: clear and convincing evidence justifying behavior
- If
non-supervisory: "only if employer becomes aware of conduct and fails
to
take reasonable corrective measures".
C. Hostile
Work Environment
- Under Title
VII
-
"unwanted sexual harassment that creates an intimidating, hostile, or
offensive working environment
- Pattern
of "objectively offensive" behavior required
- Must
substantially interfere with job performance
D. Individual
liability
-
Individual employees and supervisors are normally not personally liable
under
Title VII. However, other legal theories can be argued, including:
assault,
battery, invasion of privacy, interference with contract, retaliatory
discharge, and intentional infliction of emotional distress.
E. District
Liability
- School
District liable for administration’s deliberate indifference
to know acts of
Student-Teacher sexual harassment
-
Harassment must be sufficiently severe or pervasive so as to create an
abusive
educational environment, such that the student is effectively denied
equal
access to education
F. Recent
Developments in the Law
A. The
Supreme Court Speaks: Davis v. Monroe County
1. Student v. Student sexual harassment under Title IX
2. Similar to Teacher v. Student analysis
a. Hostile educational environment
b. Pervasive, known pattern of abuse
3. School held liable from monetary damages
II. Elements
of an Employer’s Sexual Harassment
Prevention Program
A. Policy
1. Zero
tolerance
2.
Explicit written policy prohibiting sexual harassment
3. Define
sexual harassment and describe type of conduct
4.
Clearly and regularly communicated to employees/parents/students
a. Language appropriate to age
b. Widely disseminated
5.
Grievance procedures
a. Notice
i. Where and who to file complaints with
1. Designate two individuals
b. Application of procedure
c. Adequate, impartial, thorough investigation
i. Present witnesses/evidence
d. Designated time-frames for major stages of complaint process
e. Nature of outcome
f. Statement that valid complaints addressed appropriately
g. Assurance of taking steps to prevent recurrence
h. Adequate remedies to correct
i. Statement prohibiting retaliation
j. Right/Procedures to appeal findings/remedy
6.
Adequate training programs
a. All employees
b. Supervisors - Coordinator
7.
Consider statement that frivolous filings subject to discipline
a. By employees
B. Record
keeping
C.
Investigations
1.
Immediate investigation commencement
2.
Identify appropriate investigators
3.
Initial meeting with Complainant
a. Open-ended questions
b. Exacting questions requiring specific details
c. Identify witnesses
d. Ascertain Complainant’s reaction to incident
i. Unwelcome/welcome
e. Event chronology
f. Ascertain whether Complainant discussed with others
g. Obtain any documents/letters/drawings/pictures
h. Complainant know of others harassed
i. Try to elicit motivation of Harasser
4.
Reassure Complainant
a. No retaliation
b. Consider immediate change in environment - interim measures
i. In workplace
ii. Consider immediate change in environment - interim measures
iii. Decide whether to involve law enforcement/DCFS
iv. Prevent public disclosure of names - do not guarantee
confidentiality - use
"need to know basis"
5. Meet
with Harasser
a. Do not identify Complainant
6. Meet
with Witnesses
7.
Documentation
a. Written statements
8.
Determine Response
a. Appropriate corrective actions
1. Reiterate/educate regarding policy
2. Reiterate zero tolerance and no retaliation
3. Provide new training
4. Reprimand Harasser
5. Increase monitoring of Harasser
6. Modify schedule to separate Complainant/Harasser
7. Discipline of Harasser
8. Discharge/Removal of Harasser
9. Communicate Decision
a. Meet with Complainant - no right to know actual discipline imposed
b. Meet with Harasser
10. Follow-up
a. Informally meet with Complainant after period of time to ensure
harassment
ceased
III.
Determination of Sexual Harassment Occurrence
A. Totality of
circumstances
1. Occur?
Welcome?
a. Factors to consider
1) Statements by witnesses
2) Credibility of parties
i. Corroborative evidence present
3) Others harassed
4) Accuser made false allegations previously
5) Evidence of Complainant’s reaction
6) How soon is complaint made
7) Other contemporaneous evidence
i. Diary
ii. Letters
iii. Tell others
B. Degree to
which affected student’s
education/workplace for employee
1. Grade
change
2.
Mental/emotional distress
3. Alter
student’s educational environment/employee’s
workplace environment
C.
Type/Frequency/Duration
1. More
sever conduct, less need to show repetitive
i. Taunting v. touching
ii. Simple incident can constitute
D.
Relationship of Accuser/Perpetrator
1.
Sexually based conduct by authority figure more likely to create
hostile
environment than conduct by fellow student/employee
E. Number of
individuals involved
1.
Comments by one may not be enough, but by group could be
2. Safety
in numbers - comments to group less likely to constitute harassment as
less
intimidating
F. Age or
parties
G.
Location/context of incident
1.
Restricted area
a. On school bus v. on playground
b. Private place v. public place
i. Humiliation factor in public places
H. Other
incidents at school/work
IV. District
Remedies to Sexual Harassment
A. Interim
measures during investigation
1.
Separation
2.
Contact law enforcement/DCFS
3.
Prevent public disclosure
B. Steps to
end harassment
1.
Counsel
2. Warn
3.
Discipline
4.
Terminate
5.
Permanent separation of Accuser/Harasser
6.
Minimize impact on victim
C. Steps to
eliminate hostile environment
1.
Special training to class
2. Ensure
schedule changes not affect student’s academics
3. Direct
apology
4.
Reiterate policy
D. Services to
victim
1.
Reassess student’s work
2. Allow
retaking of course
3.
Provide tutoring
4. Offer
reimbursement for/counseling
E. Prevent
retaliation
V. No
Complaint Harassment
A. No victim
coming forward
1. Third
party complaint
2.
Anonymous witnesses/letters/call
B. Evaluate
credibility
1. Degree
of specificity
2.
Seriousness of alleged conduct
3.
Ability to investigate
a. Precise allegation - anonymous complaint of cheerleader harassment -
interview cheerleaders
b. Imprecise allegation - anonymous letter claiming an employee is
harassing
students - no one to interview