DIA(LEGAL) - EMPLOYEE WELFARE: FREEDOM FROM DISCRIMINATION, HARASSMENT, AND RETALIATION
Note: This policy addresses the prohibition against harassment of employees. For legally referenced material relating to employee discrimination and retaliation, see DAA(LEGAL).
For provisions related to harassment of students, including the district's response to sexual harassment as defined by Title IX, see FFH.
Criminal Offense—Official Oppression
A public servant acting under color of the public servant's office or employment commits an offense if the public servant intentionally subjects another to sexual harassment.
A public servant acts under color of the public servant's office or employment if the person acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
"Sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
Penal Code 39.03(a)(3), (b), (c)
Harassment of Employees Prohibited
Harassment on the basis of a protected characteristic is a violation of the federal anti-discrimination laws. A district has an affirmative duty, under Title VII, to maintain a working environment free of harassment on the basis of sex, race, color, religion, and national origin. 42 U.S.C. 2000e, et seq.; 29 C.F.R. 1606.8(a), 1604.11
Harassment violates Title VII if it is sufficiently severe and pervasive to alter the conditions of employment. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)
Title VII does not prohibit all verbal and physical harassment in the workplace. For example, harassment between men and women is not automatically unlawful sexual harassment merely because the words used have sexual content or connotations. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
Firing an employee on the basis of homosexuality or transgender status violates Title VII's prohibition against sex discrimination in employment. Bostock v. Clayton County, Georgia, 17-1618, 2020 WL 3146686, (U.S. June 15, 2020)
Verbal or physical conduct based on a person's sex, race, color, religion, or national origin constitutes unlawful harassment when the conduct:
- Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
- Has the purpose or effect of unreasonably interfering with an individual's work performance; or
- Otherwise adversely affects an individual's employment opportunities.
Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); 29 C.F.R. 1604.11, 1606.8
Quid Pro Quo
Conduct of a sexual nature also constitutes harassment when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.
29 C.F.R. 1604.11(a)
Same-Sex Sexual Harassment
Same-sex sexual harassment constitutes sexual harassment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
A district should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate penalties, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. 29 C.F.R. 1604.11(f)
A district is responsible for acts of unlawful harassment by fellow employees and by nonemployees if the district, its agents, or its supervisory employees knew or should have known of the conduct, unless the district takes immediate and appropriate corrective action. 29 C.F.R. 1604.11(d), (e), 1606.8(d), (e)
When no tangible employment action is taken, a district may raise the following affirmative defense:
- That the district exercised reasonable care to prevent and promptly correct any harassing behavior; and
- That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
Harassment of Unpaid Interns
A district commits an unlawful employment practice if sexual harassment of an unpaid intern occurs and the district or its agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring, and fail to take immediate and appropriate corrective action. Labor Code 21.1065