4120 Sexual Harassment of Employees
4000 - Personnel
SEXUAL HARASSMENT IN THE WORKPLACE
It is the policy of the Lakeland Central School District to prohibit sexual harassment in the workplace consistent with guidance issued by the New York State Department of Labor in consultation with the New York State Division of Human Rights. Sexual harassment is a form of workplace discrimination and is unlawful under federal, state and, where applicable, local law. To that end, all officers, supervisory personnel and employees of the school district shall be given a copy of or digital access to this policy and be provided with annual training regarding its terms, procedures, protections and penalties. This policy applies to employees (including all staff, part-time, seasonal and temporary workers regardless of immigration status, applicants for employment and both paid and unpaid interns), and others in the school environment (including contractors, subcontractors, vendors, consultants and persons providing services pursuant to contract, and their employees) (hereinafter sometimes referred to as “non-employees”).
The Board condemns and strictly prohibits all forms of sexual harassment on school grounds, school buses and at all school-sponsored activities, programs and events including those that take place at locations outside of the district, or outside the school setting if the harassment impacts the individual’s employment or work in a way that violates their legal rights, such as when employees or others in the school environment travel on district business, or when harassment is done by electronic/digital means, including on social media.
Sexual harassment is defined as discrimination against a person of a different or the same sex because of their actual or perceived or self-identified sex and/or gender, including gender identity and gender expression, sexual orientation and transgender status. Quid pro quo sexual harassment is that which threatens the loss of employment or a change in working conditions, including, promotion, demotion, work assignment, extra-earnings opportunities and extra assignments based upon submission to demands for sexual favors or rejection of unwelcome sexual conduct by an individual.
Sexual harassment that creates a hostile work environment is either pervasive and/or severe conduct that involves unwelcome: sexual advances; sexual violence1, sexual conduct that constitutes a crime; sexual touching; indecent exposure of a sexual nature; pervasive sexual remarks, comments, displayed materials, printed materials, electronic media or jokes. The determination of a hostile work environment shall be objective, based upon the viewpoint of a reasonable person and subjectively perceived to be so by the complainant.
Gender based harassment is defined as pervasive and/or severe conduct intended to intimidate or demean a person or persons of the same or opposite gender or conduct that which treats a person of that gender differently in the work place because of his or her gender, gender identity and/or gender expression.
The District is committed to providing a workplace that is free from sexual harassment. Sexual harassment in the workplace is against the law and will not be tolerated. When the District determines that an allegation of sexual harassment is credible, it will take prompt and appropriate corrective action.
What Is Sexual Harassment?
Unwelcome sexual advances, requests for sexual favors, and/or other verbal, nonverbal or physical conduct of a sexual nature constitute sexual harassment when this conduct (1) explicitly or implicitly affects an individual’s employment or work, (2) unreasonably interferes with an individual’s work performance, (3) affects the operation of the workplace, (4) creates an intimidating, hostile or abusive work environment; or (5) when an employment/work decision affecting the individual is made because the individual submitted to or rejected the unwelcome conduct.
Certain behaviors, such as conditioning promotions, awards, training or other job benefits upon acceptance of unwelcome actions of a sexual nature, are always wrong.
Unwelcome actions such as the following are inappropriate and, depending on the circumstances, may in and of themselves meet the definition of sexual harassment or contribute to a hostile work environment:
School-related conduct that the district considers unacceptable and which may constitute sexual harassment includes, but is not limited to, the following:
(1) Rape, attempted rape, sexual assault, attempted sexual assault, forcible sexual abuse, hazing, and other sexual and gender-based activity of a criminal nature as defined under the State Penal Law;
(2) Unwelcome sexual advances, invitations or requests for sexual activity, including, but not limited to, those in exchange for grades, promotions, preferences, favors, selection for extracurricular activities or job assignments, homework, etc. or when accompanied by an implied or overt threat concerning the target’s work, employment or school evaluations, other benefits or detriments;
(3) Unwelcome or offensive public sexual display of affection, including kissing, hugging, making out, groping, fondling, petting, inappropriate touching of one's self or others (.e.g., pinching, patting, grabbing, poking), sexually suggestive dancing, and massages;
(4) Any unwelcome communication that is sexually suggestive, sexually degrading or derogatory or implies sexual motives or intentions, such as sexual remarks or innuendoes about an individual's clothing, appearance or activities; sexual jokes; sexual gestures; public conversations about sexual activities or exploits; sexual rumors and "ratings lists;" howling, catcalls, and whistles; sexually graphic computer files, messages or games, etc.;
(5) Unwelcome and offensive name calling or profanity that is sexually suggestive or explicit, sexually degrading or derogatory, implies sexual intentions, or that is based on sexual stereotypes or sexual orientation, gender identity or expression;
(6) Unwelcome physical contact or closeness that is sexually suggestive, sexually degrading or derogatory, or sexually intimidating such as the unwelcome touching of another's body parts, cornering or blocking an individual, standing too close, spanking, pinching, following, stalking, frontal body hugs, etc.;
(7) Unwelcome and sexually offensive physical pranks or touching of an individual's clothing, such as hazing and initiation, "streaking," "mooning," "snuggies" or "wedgies" (pulling underwear up at the waist so it goes in between the buttocks), bra-snapping, skirt "flip-ups," "spiking" or “pantsing” (pulling down someone's pants or swim suit); pinching; placing hands inside an individual's pants, shirt, blouse, or dress, etc.;
(8) Unwelcome leers, stares, gestures, or slang that are sexually suggestive; sexually degrading or derogatory, or imply sexual motives or intentions;
(9) Clothing with sexually obscene or sexually explicit slogans or messages;
(10) Unwelcome and offensive skits, assemblies, and productions that are sexually suggestive, sexually degrading or derogatory, or that imply sexual motives or intentions, or that are based on sexual stereotypes;
(11) Unwelcome written or pictorial display or distribution (including via electronic devices) of pornographic or other sexually explicit materials such as signs, graffiti, calendars, objects, magazines, videos, films, Internet material, etc.
(12) Other hostile actions taken against an individual because of that person’s sex, sexual orientation, gender identity or expression, or transgender status, such as interfering with, destroying or damaging a person’s work or school area or equipment; sabotaging that person’s work or school activities; bullying, yelling or name calling; or otherwise interfering with that person’s ability to work or participate in school functions and activities; and
(13) Any unwelcome behavior based on sexual stereotypes and attitudes that is offensive, degrading or derogatory, intimidating, or demeaning, including, but not limited to:
(a) disparaging remarks, slurs, jokes about or aggression toward an individual because the person displays mannerisms or a style of dress inconsistent with stereotypical characteristics of the person’s sex;
(b) ostracizing or refusing to participate in group activities with an individual during class projects, physical education classes or field trips because of the individual’s sex, gender expression or gender identity;
(c) taunting or teasing an individual because they are participating in an activity not typically associated with the individual’s sex or gender.
For purposes of this regulation, action or conduct shall be considered "unwelcome" if the employee or others in the school environment did not request or invite it and regarded the conduct as undesirable or offensive.
Determining if Prohibited Conduct is Sexual Harassment
Complaints of sexual harassment will be thoroughly investigated to determine whether the totality of the behavior and circumstances meet any of the elements of the above definition of sexual harassment and should therefore be treated as sexual harassment. Not all unacceptable conduct with sexual connotations will constitute sexual harassment. In many cases (other than quid pro quo situations where the alleged harasser offers academic or employment rewards or threatens punishment as an inducement for sexual favors), unacceptable behavior must be sufficiently severe, pervasive and objectively offensive to be considered sexual harassment. If the behavior doesn’t rise to the level of sexual harassment, but is found to be objectionable behavior, the individual will be educated and counseled in order to prevent the behavior from continuing.
In evaluating the totality of the circumstances and making a determination of whether conduct constitutes sexual harassment, the individual investigating the complaint should consider:
(1) the degree to which the conduct altered the conditions of the employee's or other individual’s working environment;
(2) the type, frequency and duration of the conduct;
(3) the identity of and relationship between the alleged harasser and the subject of the harassment (e.g., sexually based conduct by an authority figure is more likely to create a hostile environment than similar conduct by a student or a co-worker);
(4) the number of individuals involved;
(5) the age and sex of the alleged harasser and the subject of the harassment;
(6) the location of the incidents and context in which they occurred;
(7) other incidents at the school; and
(8) incidents of gender-based, but non-sexual harassment.
Title VII/IX Officers
The District’s Title VII/IX Officers are the Assistant Superintendent for Instruction and the Assistant Superintendent for Pupil Personnel Services. They are charged with investigating and/or overseeing the investigation of sexual or gender based harassment complaints. The District’s Title VII/IX Officers can be reached by calling (914) 245-1700, Ext. 39062 or Ext. 39036; or by mail: 1086 East Main Street, Shrub Oak, NY 10588; or by email at the following email addresses: email@example.com or firstname.lastname@example.org.
In order for the District to effectively enforce this policy and to take prompt corrective measures, it is essential that all targets of sexual harassment and persons with knowledge of sexual harassment report the harassment immediately.
Any employee or other in the school environment, as defined above, who believes that he or she has been subjected to sexual harassment or gender based harassment by an officer, supervisor, business invitee, student, by another employee or non-employee in the school environment is encouraged to address the matter with the Principal or one of the District’s Title VII/IX Officers. Any employee who believes that another employee has been subjected to such harassment must report the matter to the Principal or one of the District’s Title VII/IX Officers. The Principal or Title VII/IX Officer shall promptly conduct an intake interview and explain the following options for resolution:
(1) Registering an informal complaint verbally or in writing; or
(2) Registering a formal complaint verbally or in writing; or
(2) Engaging in voluntary facilitated mediation to arrive at a resolution of the matter (this shall not be utilized when allegations involve sexual violence or sexual assault); or
(3) Placing the district on notice of the objectionable conduct without seeking a resolution through the complaint process or mediation.
The Principal or Title VII/IX Officer will also explain that the complaining employee or non-employee and those participating in the investigation shall not be subject to retaliation or retribution by reason of making the complaint or participating and that confidentiality shall be maintained throughout the process by all involved, except as necessary to assure fair and due process. The complaining employee or non-employee and participating employees and/or students should be encouraged to immediately notify the Principal or a Title VII/IX officer if they feel they are being retaliated against. Where feasible, complainants will be separated from the alleged harasser to allow for a full and fair investigation and to prevent ongoing harassment during the pendency of the investigation. If the complainant reports that they feel unsafe at work due to the nature of the complaint, the District will determine if accommodations need to be made until the issue is resolved.
Managers and supervisors are required to report any complaint that they receive, whether informal or formal, verbal or written, or any harassment that they observe to a Title VII/IX Officer.
An informal complaint will be promptly reviewed by the Principal or Title VII/IX Officer who shall issue a written report to the Superintendent within seven (7) calendar days. The Superintendent shall take such further action necessary to reasonably deter any further act prohibited by this policy. Such further action may include referring the matter to a Title VII/IX Investigator as if it had been filed as a formal complaint.
All formal complaints shall be received in writing or reduced to writing by the Principal or Title VII/IX Officer, who shall personally or by reference to a designee on the Board's approval list conduct a full and fair impartial investigation of the complaint, which will include providing the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence, make written findings of fact and, where warranted, recommend a resolution to the Superintendent of Schools within thirty (30) calendar days of the initial report received either verbally or in writing, absent exigent circumstances. The evidentiary standard used during the investigation is preponderance of the evidence in resolving the complaint. The Superintendent of Schools shall advise the complainant and the subject of the complaint in writing of the disposition of the complaint that may include:
(1) A finding that this policy has not been violated;
(2) A finding that this policy has been violated and appropriate corrective, disciplinary and/or other action has been taken; or
(3) That disciplinary action has been taken or, where pre-disciplinary charges must be preferred, that they have been preferred in order to convene a disciplinary hearing.
The Board shall appoint more than one Title VII/IX Officers and several designated Title VII/IX formal complaint investigators. Complainant will have a choice of which Title VII/IX Officer to approach regarding a Title VII/IX complaint. If the complaint is about the Superintendent of Schools, the Board shall stand in the Superintendent's place for review activities as described above with respect to informal and formal complaints.
The Superintendent shall take such further action necessary to reasonably deter and prevent the recurrence of any further acts prohibited by this policy. Such further action may include:
(1) Separating the harasser and the victim (in a way that does not adversely impact the victim’s employment or work);
(2) Providing counseling to the target and/or harasser;
(3) Disciplinary action against the harasser;
(4) Reviewing any disciplinary action taken against the complainant to determine if there was a causal connection between the harassment and the misconduct that may have resulted in the complainant being disciplined;
(5) Providing education and training on sexual harassment;
(6) Directing the victim in writing to immediately report any new concerns or incidences of harassment and/or retaliation by the perpetrator(s) or others;
(7) Providing a written directive to those involved in the investigation/allegations of the prohibitions against further harassment and/or retaliation against the victim and others for their role in cooperating in the investigation.
Appeal of Formal Complaints
If a formal complaint has not been processed to a satisfactory disposition by the Superintendent within thirty (30) calendar days of when the complaint is received in writing by the Title VII/IX Officer, unless longer following request by the Title VII/IX officer and/or investigator and this timeline has been extended by the Superintendent with the written consent of the complainant, the complainant or alleged perpetrator(s) may appeal in writing to the Board to address the failure and direct an expedited investigation with a report back to the Board within fifteen (15) calendar days. Regarding matters that have been timely investigated to conclusion, a written appeal to the Board must be made by the complainant or the subject of the complaint within thirty (30) calendar days of being informed of the findings upon the allegations in the complaint. The Board shall render a written decision on such an appeal within thirty (30) calendar days. In cases in which the Board serves as an alternate, there shall be no internal appeals process.
The Principal, the District's Title VII/IX Officer(s), the Superintendent of Schools and the Board of Education shall, to the maximum extent possible, maintain as confidential the transaction(s) underlying the proceedings or complaint, the outcome of a mediated agreement and action taken, other than formal discipline. The subject of the proceedings or complaint, however, shall be informed of the identity of the person who commenced the proceedings or complaint in order to provide fair and due process.
If a complainant requests that his/her name not be revealed to the individual(s) against whom a complaint is filed, the staff member responsible for conducting the investigation shall inform the complainant that:
(1) The request may limit the district's ability to respond to his/her complaint;
(2) District policy and federal law prohibit retaliation against complainants and witnesses;
(3) The district will attempt to prevent any retaliation; and
(4) The district will take strong responsive action if retaliation occurs.
If the complainant still requests confidentiality after being given the notice above, the investigator will take all reasonable steps to investigate and respond to the complaint consistent with the request as long as doing so does not preclude the district from responding effectively to the harassment and preventing the harassment of students, other employees or others in the school environment.
Any individual who violates this policy by engaging in prohibited sexual harassment will be subject to appropriate disciplinary action. Disciplinary measures available to school authorities include, but are not limited to:
For Officers, Supervisors or Employees: Discipline may range from a warning up to and including termination, to be imposed consistent with all applicable contractual and statutory rights.
Volunteers: Penalties may range from a warning up to and including loss of volunteer assignment.
Other Individuals in the School Environment (i.e., non-employees): Penalties may range from a warning up to and including loss of District business.
Others: Penalties may range from a warning up to and including denial of future access to school property.
Any complaint that is determined to have been processed maliciously or in bad faith shall be deemed to be in violation of this policy and may give rise to disciplinary consequences against the complainant.
Any complaint that involves allegations which constitute or may constitute criminal behavior will be immediately and directly referred to law enforcement personnel. Such a referral shall not relieve the District of its obligations to investigate and remediate such conduct.
No person covered by this policy shall be subject to adverse employment action, including, but not limited to, discipline, discrimination, demotion, denial of privileges, or any action that would keep a person from coming forward to make or support a sexual harassment claim. Such actions need not be employment-related or occur in the workplace or school environment in order to constitute unlawful retaliation.
Any employee who retaliates against anyone involved in a sexual harassment investigation will be subject to disciplinary action, up to and including termination. Any employee or other in the workplace/school environment who believes they have been subject to such retaliation should inform a supervisor, Principal, Title VII/IX Officer, Director of Human Resources or the Superintendent. Any such individual who believes they have been a victim of retaliation may also seek compensation in other available forums, as described below under “Legal Protections and External Remedies.”
All employees shall be provided training at least once a year regarding the District's commitment to a harassment-free learning and working environment. Principals, Title VII/IX coordinators, and other administrative employees who have specific responsibilities for investigating and resolving complaints of sexual harassment shall receive yearly training on this policy, any implementing regulation and related legal developments.
All new employees shall receive training about sexual harassment at a new employee orientation or as soon as possible after starting their job, unless he/she can demonstrate that they have received equivalent training within the past year from a previous employer.
Annual employee training programs shall be interactive and include: (1) an explanation of sexual harassment consistent with guidance issued by the NYS Department of Labor and NYS Division of Human Rights; (2) examples of conduct that is unlawful sexual harassment; (3) information on federal and state laws about sexual harassment and remedies available to victims of sexual harassment; (4) information concerning employee rights to make complaints in all available forums for investigating complaints; and (5) address the conduct and responsibilities of supervisors.
Legal Protections and External Remedies
In addition to the internal process set forth in this policy, aggrieved parties may pursue legal remedies with appropriate governmental entities.
New York State Division of Human Rights (DHR) - Article 15 of the New York State Executive Law is known as the New York Human Rights Law. It protects all employees, whether paid or unpaid, and non-employees regardless of immigrant status. A complaint alleging a violation of the Human Rights Law may be filed with either the DHR or in New York State Supreme Court. Contact DHR at (888) 392-3644 or visit the DHR website at: dhr.ny.gov.
United States Equal Employment Opportunity Commission (EEOC) - The EEOC enforces federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment. An employee can file a charge alleging discrimination with the EEOC. Contact EEOC at 1-(800)-669-4000 or visit the EEOC website at: www.eeoc.gov.
Many localities enforce laws protecting individuals from sexual harassment and discrimination. An individual should contact the county, city or town in which they live to find out if such a law exists. You may contact the Westchester County Human Rights Commission at https://humanrights.westchestergov.com.
If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department.
The District may include a nondisclosure agreement (to not disclose the underlying facts and circumstances of a sexual harassment complaint) in any sexual harassment settlement agreement or resolution only if it is the complainant’s preference. Any such nondisclosure agreement shall be provided to all parties. Complainants shall have 21 days to consider any such nondisclosure provision before it is signed by all parties, and shall have seven days to revoke the agreement after signing. Nondisclosure agreements shall only become effective after this seven-day period.
No district contract or collective bargaining agreement may include a binding arbitration clause for sexual harassment requiring arbitration before bringing the matter to court.
Access to this Policy
This policy and its procedures for investigating sexual harassment complaints shall be included in employee handbooks, if any, and available on the District’s website and/or electronically/digitally accessible to all officers, supervisory personnel, employees, contractors and volunteers of the District. A poster summarizing the policy shall also be posted in a prominent location at each school. This policy shall also be disseminated to new employees before they start their job and reviewed during staff orientations, mailings and upon receipt of complaints.