Supervisor, Teacher, and School Personnel Responsibilities under Federal and State Sexual Harassment Laws

 “Unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or visual forms of harassment of a sexual nature…” Sexual Harassment – Employment Sexual Harassment – Students Sexual Harassment

“when submission to such conduct is either explicitly or implicitly made a term or condition of employment or is used as the basis for employment decisions or when such conduct has the purpose of effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.” Title VII, Civil Rights Act of 1964, as Amended 1991 Employment

“by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.” Title IX of the Education Amendments of 1972 Students

North Carolina Employment Practices Act Retaliatory Employment Discrimination Act Torts Wrongful Discharge Intentional Infliction of Emotional Distress *** Criminal Laws *** Rape Sexual Offense Sexual Offense by School Employee Assault *** Individual Liability State Laws

Title VII (Discrimination in Employment) Title IX (Student free from Sexual Harassment) 42 U.S.C. § 1981 (Discrimination in Employment Contracts) 42 U.S.C. § 1983 (Civil Rights Violation) *** *** Individual Liability Federal Laws

Types of Employment Based Sexual Harassment Adverse Employment Action Hostile Work Environment Sexual Harassment in Employment

Adverse Employment Action School Board will always be liable for instances of Employment Sexual Harassment based upon an Adverse Employment Action. Liability for Employment Based Sexual Harassment

Hostile Work Environment Defenses Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and That the harassed employee unreasonably failed to take advantage of the school’s anti-harassment policies Liability for Employment Based Sexual Harassment

 Prohibition Against Discrimination, Harassment and Bullying Policy Code: 1710/4021/7230: Reference School Board Policy Manual under CCS Website  Discrimination, Harassment and Bullying Complaint Procedure Policy Code: 1720/4015/7225: Reference School Board Policy Manual under CCS Website Preventive Measures

42 U.S.C Intentional Infliction of Emotional Distress Criminal Assault Disciplinary Actions Individual Liability Concerns

Hostile environment sexual harassment of a student by other students, employees, or third parties is created if conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or to create a hostile or abusive educational environment TITLE IX Sexual Harassment

Applies to educational institutions that receive federal funds. Applies to students engaging in academic educational, extra-curricular, athletic and any other school program. Take place at school facilities, bus, or other location if sponsored by school. Reasonable Care to Prevent…. Policies Supervisor training and education TITLE IX Sexual Harassment

Quid Pro Quo Sexual Harassment Hostile Environment Sexual Harassment TITLE IX Sexual Harassment

 School always will be liable for even one instance of sexual harassment of quid pro quo or adverse employment action Liability of School for Sexual Harassment

A school will also be liable for hostile environment sexual harassment by its employees (non quid pro quo) if: 1)The harassing employee acted with apparent authority or 2)The harassing employee was aided in carrying out the sexual harassment of students by his or her position of authority with the school system. 3)School also liable for non quid pro quo sexual harassment if they knew or should have known of the harassment and failed to take immediate and appropriate steps to remedy known harassment. Example: Coach threatens to bench a student unless that student agrees to respond to his sexual advances (although the coach never follows through on his/her threat). Liability of School for Sexual Harassment

 Schools are required to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints and to disseminate its policy against sex discrimination. Policies

 Prohibition Against Discrimination, Harassment and Bullying Policy Code: 1710/4021/7230: Reference School Board Policy Manual under CCS Website  Discrimination, Harassment and Bullying Complaint Procedure Policy Code: 1720/4015/7225: Reference School Board Policy Manual under CCS Website  Staff-Student Relations Policy Code 4040/7310 Policies

42 U.S.C. § 1983 (Civil Rights Violation) Culpable Person Supervisor Liability Individual Liability

An individual can be held liable under a theory of supervisory liability under §1983 where: 1)The supervisor had actual or constructive knowledge that his or her subordinate was engaged in a conduct that posed a pervasive and unreasonable risk of sexual harassment; 2)That the supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and 3)That there was an affirmative causal link between the supervisor’s inaction and sexual harassment injury. Individual Liability

N. C. Gen. Stat § First Degree Rape N. C. Gen. Stat § Second Degree Rape N. C. Gen. Stat § First Degree Sexual Offense N. C. Gen. Stat § Second Degree Sexual Offense N. C. Gen. Stat § Intercourse and Sexual Offenses with Certain Victims N. C. Gen. Stat § A Statutory Rape N. C. Gen. Stat §14.33Misdemeanor Assault N. C. Gen. Stat § Taking Indecent Liberties with a Student * The majority of these crimes are felony-level offenses and, for state licensed employees, carry license- revocation penalties. Criminal Liability