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POLICY
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Year: 2018 Policy
#: 6121
Section: Personnel
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SUBJECT: Sexual Harassment Prevention
PROHIBITIONS
AND COMPLAINTS
Sexual Harassment Prohibited: Sexual harassment is illegal under federal
law and state law; it is a form of employee misconduct; and it is prohibited by
the Pavilion Central School District (the “District”). This prohibition applies to all employees,
including but not limited to salaried, time sheet, ten month, twelve month, and
substitute employees. It also applies to
non-employees in the workplace, including contractors, employees of
contractors, vendors, consultants and other persons providing services.
Retaliation Prohibited: Retaliation is any
adverse action taken against a person due to that person having made a sexual
harassment complaint, having assisted in a sexual harassment investigation or
having testified or otherwise assisted in any proceeding under this policy or
under the law. The adverse action may be
work related, such as termination of employment, demotion, transfer, or
discipline. The adverse action may also be
unrelated to work, such as personal threats or insults. Retaliation is illegal under federal law and
state law; it is a form of employee misconduct; and it is prohibited by the District.
Discipline and Remediation for
Harassment or Retaliation: Any employee who
engages in sexual harassment or retaliation will be subject to disciplinary and/or
remedial action. Discipline may include
termination of employment. Remedial
action may include additional sexual harassment prevention training, warnings
and counseling. Intentional wrongdoers
may also be liable for the payment of money damages.
Internal Victim and Witness Complaints: Victims of and witnesses to sexual harassment
or retaliation, whether employees or non-employees, are urged to report to the
District Superintendent, the Building Administrator or School Business Official. A complaint form is provided below. However, if a complainant or witness prefers
to report in any other manner - such as verbally, using a different form or by a
report to the complainant’s direct supervisor or union representative - that preference will be respected and the complaint
will be acted upon irrespective of the manner in which it is made.
Internal Supervisory Reporting: Supervisory personnel are required to report
any sexual harassment or retaliation complaint they receive - or any sexual
harassment or retaliation they observe or otherwise become aware of - to the
District Superintendent, the Building Administrator or School Business Official. Supervisory personnel who fail to report or
who deliberately permit sexual harassment will be subject to discipline or
remediation.
External Complaints: External forums in which sexual harassment
and retaliation complaints may also or instead be made are identified below. (See “Legal Protections and External
Remedies.”)
INVESTIGATIONS
AND OUTCOMES
Investigations: All complaints and legitimate suspicions of
sexual harassment or retaliation will be investigated in a timely manner. To every extent consistent with the law, all
employees are required to cooperate with internal investigations. The District will maintain confidentiality to
the extent practicable. All persons
involved, including complainants, witnesses and the accused will be accorded
due process, as outlined below, to protect their rights to a fair and impartial
investigation.
While the investigatory
process may vary from case to case and will be commensurate with the severity
of the complaint, investigations will typically be conducted in accordance with
the following steps:
·
Upon
receipt of a complaint, the District Superintendent, the Building Administrator
or School Business Official will conduct an investigation. If the initial complaint is verbal, the
complainant will be encouraged to also complete the attached complaint form. If the complainant chooses not to, the
investigator will prepare the complaint form based on the verbal report.
·
If
documents, emails, electronic communications or phone records are known to be relevant
to the investigation, steps will be taken to obtain and preserve them.
·
The
complainant, the accused and witnesses will be interviewed. They will be instructed to maintain
confidentiality to the extent permitted by law.
·
An
investigation report will be written. It
will include:
o
A
list of all documents reviewed, along with a copy or description;
o
A
list of the names of those interviewed, along with a detailed summary of their
statements;
o
A
timeline of events;
o
A
summary of prior relevant incidents, reported or unreported; and
o
The
action taken at the conclusion of the investigation. This section of the report will often be
written separately and as an addendum to the initial report.
The Outcome Following Investigation:
The
specific outcome of the investigation, such as employee discipline or other
consequences, will depend on many factors - including the investigation findings,
whether the investigation was conclusive or inconclusive, prior misconduct,
prior attempts at remediation, applicable law and applicable collective bargaining
agreements. If consistent with
considerations of confidentiality, the complainant and the accused will be
notified of the final determination and of any corrective action to be taken.
Distribution of Policy: This policy shall be provided to all employees
in writing and it shall be posted at District work locations and on the District
website.
FURTHER INFORMATION
What
is Sexual Harassment?
Sexual
harassment includes unwelcome conduct which is either of a sexual nature, or
which is directed at an individual because of that individual’s sex, sexual
orientation, self-identified or perceived sex, gender expression, gender
identity and the status of being transgender when:
·
Such
conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile or offensive
work environment, even if the reporting individual is not the intended target
of the sexual harassment;
·
Such
conduct is made either explicitly or implicitly a term or condition of
employment; or
·
Submission
to or rejection of such conduct is used as the basis for employment decisions
affecting an individual’s employment.
A
sexually harassing hostile work environment includes, but is not limited to,
words, signs, jokes, pranks, intimidation or physical violence which are of a
sexual nature, or which are directed at an individual because of that
individual’s sex. Sexual harassment also consists of any unwanted verbal or
physical advances, sexually explicit derogatory statements or sexually
discriminatory remarks which are offensive or objectionable to the recipient,
which cause the recipient discomfort or humiliation, or which interfere with
the recipient’s job performance.
“Quid
pro quo” is a form of sexual harassment.
Quid pro quo sexual harassment occurs when a person in authority
attempts to trade job benefits for sexual favors. The job benefits may include
hiring, promotion, continued employment or any other terms, conditions or
privilege of employment.
Examples
of Sexual Harassment
Examples
of sexual harassment may include:
·
Unwanted
physical acts of a sexual nature, such as touching, pinching, patting, kissing,
hugging, grabbing, brushing against another employee’s body or poking another
employee’s body.
·
Unwanted
sexual advances or propositions, such as:
o
Requests
for sexual favors accompanied by implied or overt threats concerning the
target’s performance evaluation, promotion or other job benefits or detriments;
or
o
Subtle
or obvious pressure for unwelcome sexual activities.
·
Sexually
oriented gestures, noises, remarks or jokes, or comments about a person’s
sexuality or sexual experience, which create a hostile work environment.
·
Sex
stereotyping, which occurs when conduct or personality traits are considered
inappropriate simply because they may not conform to another person’s ideas or
perceptions about how individuals of a particular sex “should” act or look.
·
Sexual
or discriminatory displays or publications anywhere in the workplace, such as
pictures, posters, calendars, graffiti, objects, promotional material, reading
materials or other materials that are sexually demeaning or pornographic. This
includes such sexual displays on workplace computers or cell phones and sharing
such displays while in the workplace.
·
Hostile
actions taken against an individual because of that individual’s sex, sexual
orientation, gender identity and the status of being transgender, such as:
o
Interfering
with, destroying or damaging a person’s workstation, tools or equipment, or
otherwise interfering with the individual’s ability to perform the job;
o
Sabotaging
an individual’s work;
o
Bullying,
yelling, or name-calling.
·
Rape,
sexual battery, molestation or attempts to commit these assaults.
Who
can be a target of sexual harassment?
Sexual
harassment can occur between any individuals, regardless of their sex or
gender. Harassers can be a superior, a subordinate,
a coworker or anyone in the workplace including an independent contractor,
contract worker, vendor, client, customer, or visitor. New York Law protects employees, paid or
unpaid interns, and non-employees, including independent contractors, and those
employed by companies contracting to provide services in the workplace.
Where can sexual harassment occur?
Unlawful
sexual harassment is not limited to the physical workplace itself. It can occur
while employees are traveling for business or at employer sponsored events or
parties. Calls, texts, emails, and social media usage by employees can
constitute unlawful workplace harassment, even if they occur away from the
workplace, on personal devices, or during non-work hours.
Legal
Protections and External Remedies
In
addition to or instead of using the attached Complaint Form, employees may
pursue legal remedies with the following governmental entities. A private attorney is not required.
State Human Rights Law (HRL)
The
Human Rights Law (HRL), codified as N.Y. Executive Law, art. 15, § 290 et seq.,
applies to all employers in New York State.
It protects employees, paid or unpaid interns, and non-employees,
regardless of immigration status. A complaint alleging violation of the Human
Rights Law may be filed either with the Division of Human Rights (DHR) or in
New York State Supreme Court.
Complaints with DHR may be filed any
time within one year of the
harassment. If an individual did not file with DHR, they may sue directly in
state court under the HRL, within three
years of the alleged sexual harassment. An individual may not file with DHR if they
have already filed a HRL complaint in state court.
Complaining internally does not
extend your time to file with DHR or in court. The one year or three year deadline
is counted from the date of the most recent incident of harassment.
DHR will investigate
your complaint and determine whether there is probable cause to believe that
sexual harassment has occurred. Probable cause cases are forwarded to a public
hearing before an administrative law judge. If sexual harassment is found after
a hearing, DHR has the authority to award relief, which varies but may include
requiring your employer to take action to stop the harassment, or redress the
damage caused, including paying of monetary damages, attorney’s fees if any,
and civil fines.
DHR’s
main office contact information is: NYS Division of Human Rights, One Fordham
Plaza, Fourth Floor, Bronx, New York 10458. You may call (718) 741-8400 or visit: www.dhr.ny.gov. DHR also maintains an office in Rochester,
New York, at 259 Monroe Avenue, Suite 308, Rochester, New York 14607. You may call (585)238-8250.
Contact DHR at (888) 392-3644 or visit dhr.ny.gov/complaint for
more information about filing a complaint. The website has a complaint form
that may be downloaded, filled out, notarized and mailed to DHR. The website also
contains contact information for DHR’s regional offices across New York State.
Civil Rights Act of 1964
The
United States Equal Employment Opportunity Commission (EEOC) enforces federal
anti-discrimination laws, including Title VII of the 1964 federal Civil Rights
Act (codified as 42 U.S.C. § 2000e et seq.). An individual can file a complaint
with the EEOC anytime within 300 days from the harassment. There is no cost to
file a complaint with the EEOC. The EEOC will investigate the complaint and determine whether there is reasonable cause to believe that
discrimination has occurred, at which point the EEOC will issue a Right to Sue
letter permitting the individual to file a complaint in federal court.
The EEOC does not hold hearings or award relief, but may take
other action including pursuing cases in federal court on behalf of complaining
parties. Federal courts may award remedies if discrimination is found to have
occurred. In general, private employers must have at least 15 employees to come
within the jurisdiction of the EEOC.
An
employee alleging discrimination at work can file a “Charge of Discrimination.”
The EEOC has district, area, and field offices where
complaints can be filed. Contact the EEOC by calling 1-800-669-4000 (TTY:
1-800-669-6820), visiting their website at www.eeoc.gov or via email at info@eeoc.gov.
If
an individual files an administrative complaint with DHR, DHR will file the
complaint with the EEOC to preserve the right to proceed in federal court.
Local Protections
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.
Contact the Local
Police Department
If
the harassment involves unwanted physical touching, coerced physical
confinement or coerced sex acts, the conduct may constitute a crime. Contact
the local police department.
SEXUAL
HARASSMENT COMPLAINT FORM
YOUR INFORMATION:
Name:
_________________________ Job Title: __________________________
Personal
Phone: _________________ Work Phone:
________________________
MANNER OF FIRST CONTACT:
You will be contacted about this complaint. Please specify the phone number or email
address at which first contact should be made:
____________________________________.
SPECIFIC COMPLAINT:
1.
The
name of the person(s) about whom you are complaining:
Name: ______________________ Title: _____________________
Relationship to you: ¨ Supervisor ¨ Subordinate ¨ Co-Worker ¨ Other: ___________
2.
Describe
the conduct or incident(s) that are the basis of this report and your reasons
for believing the conduct is harassment. Use additional paper if necessary.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3.
Date(s)
harassment occurred if known: ________________________________
Is the harassment presently continuing?
¨Yes ¨No
4.
List
the name and contact information of any witnesses or individuals that may have
information related to your complaint. Use
additional paper if necessary.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
5.
Have
you previously complained or provided information (verbal or written) about
harassment this complaint? If yes, when and to whom?
______________________________________________________________________
______________________________________________________________________
Signature:
_________________________________ Date:
________________