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Baby You Can Drive My Car: How to Conduct a Sexual Harassment Investigation – Part 1

by Melissa Mozingo

This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.  

In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company.  The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment.  Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.”  The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats.  The author alleges that she was propositioned for sex over company chat.  When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense.  She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.

Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims.  Here are some basics to a district’s obligations to investigate when an employee complains of harassment.

  1. Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information).  Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring.  29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
  2. Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted.  The EEOC set forth examples of precautionary steps that may be necessary include:  “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
  3. The investigation must be immediate. How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated.  In Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993),  the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later.  In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
  4. The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints.  The investigator does not have to have investigation experience or meet any certain training requirements.  However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations.  First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district.  Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation.  Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.

The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation.  To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser.  This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.

If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C.  The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).

 

Virginia Transgender Case Marches On

by Tommy Fisher

On March 28, 2017, the United States Supreme Court will hear arguments in Gloucester County School Board v. G.G., more commonly referred to as the transgender restrooms case.  The primary issue in the case, whether public schools can be required to let transgender students use bathrooms that align with their gender identity, is one of the highest profile cases likely to be heard by a Supreme Court that has only eight sitting members since the death of Justice Antonin Scalia in February 2016.  How the Gloucester case is deciding could have a far reaching impact on public schools across the United States and merits watching closely by districts and their boards.

G.G. is a 17 year old student at Gloucester High.  G.G. was born female but identifies as a male.  He was allowed to use the boys’ restroom at his school for several weeks in 2014.  After some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.  G.G. sued the board, alleging that its policy is discriminatory and violates his civil rights.  The 4th Circuit Court of Appeals agreed with G.G. and ruled the case could go forward.  The appeals court deferred to the position of the Obama administration that Title IX bans sex discrimination in public school, and thus protects the rights of transgender students to use the bathroom that aligns with their gender identity. Shortly after the 4th Circuit’s decision, the U.S. Department of Education issued guidance to schools consistent with the decision.  The Supreme Court issued an order that stays the decision of the 4th Circuit.  As a result, G.G. will not be allowed to use the boys’ bathroom while the decision by the Supreme Court is pending.

Further compounding the transgender bathroom issue is a case being appealed to the 5th Circuit Court of Appeals, State of Texas, et al., v. United States of America, et al.  The district court Judge in the State of Texas case issued a nationwide injunction banning enforcement of an Education Department policy requiring schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.  The State of Texas case is being appealed to the U.S. 5th Circuit Court of Appeals.

So where does all of this leave the transgender bathroom in schools issue?  For now, the nationwide injunction bans the Department of Education from enforcing its policy.  If the 5th Circuit Court of Appeals upholds the injunction, it will remain in place nationwide.  If the Supreme Court deadlocks 4-4 in the G.G. case, which is a possibility given the current makeup of the eight member Court, the decision of a Texas District Court Judge could remain in place as long as the Supreme Court is unable resolve the issue.  Whatever the outcome, the issue certainly should be followed closely by districts as the regulatory and legal landscape on this issue evolves.

If you or your staff require further information or if an issue arises involving a transgender student, the attorneys at Leasor Crass stand ready to assist.

Proper Investigation Matters: Student’s Sexual Abuse Claims Fail

by Bobby Padgett

by Bobby Padgett

A federal district court dismissed all claims filed by McAllen ISD parents alleging that a teacher engaged in sexual contact with their child during a school trip and on the high school campus. In Moreno v. McAllen Independent School District, the parents asserted causes of action under Section 1983, Section 1985, and Title IX, in addition to state law claims of assault and battery, negligence, negligence per se, and intentional infliction of emotional distress.  The district court dismissed the state law claims for failure to state a claim, and granted summary judgment on the federal claims.

Before moving to a discussion regarding the District’s investigation, a brief overview of each claim is as follows:

  • Section 1983 Claims: The Court found the Section 1983 claim was meritless because there was no showing that a state action had deprived the child of federal rights.
  • Fourteenth Amendment Claims: The Court found meritless the claim that the child was to be free from state-caused damage to his bodily integrity noting there was no evidence showing the presence or absence of any District training programs and how they were defective.  Furthermore, there was no evidence that the Board knew of any violations, or received complaints about a District employee and deliberately chose to do nothing.
  • Section 1985 Claim: The Court found the Section 1985 claim for conspiracy meritless based on a determination that a school board and its employees constitute a single entity, and as such cannot be co-conspirators.
  • Title IX Claim: While the court noted that sexual abuse of a student by a teacher of the same sex constituted discrimination under Title IX, the claimant failed to show that a school employee with supervisory authority over the accused employee had actual notice of the abuse.

Regarding the District’s investigation into this matter, the Court found that one teacher in the District had complained about the accused employee’s behavior with male students to a principal, but that the conduct described in the complaints was susceptible to multiple interpretations and would not have given the principal actual notice that the accused employee was sexually harassing or abusing students.

Furthermore, and most important, the Court could not find that the District was deliberately indifferent to the abuse. After the District received the allegations, it swiftly initiated an investigation, notified the McAllen Police Department and Child Protective Services, and placed the accused employee on paid leave.  In sum, because the family had not shown that any supervisor in the District had actual knowledge that the accused employee posed a substantial risk of abusing students and responded with deliberate indifference, the Court granted the District summary judgment and dismissed the claims.

The lesson here is one which should be carefully heeded.  If, at any time, a student makes a claim of any type of harassment against a district employee, that district should immediately begin its investigation to ensure it either proves the allegation false or roots out and remedies the discrimination.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding existing discrimination law and the implications it may have for your district.

From Pokémon Go to “Where Can I Go?”: Legal Battles over Restroom Access in Schools

by Christie Hobbs

by Christie Hobbs

While many students were chasing Pokémon this summer, others were in hot pursuit of court rulings over restroom access.  Nationwide, there are 17 lawsuits pending over this question:  Which restroom can a transgender student use at school?

Dear Colleague Letter:  Federal Guidance  

In May, the Office for Civil Rights issued a “Dear Colleague Letter” instructing all schools to allow students to use the restrooms and locker rooms “consistent with their gender identities.”  The Letter defines “transgender” to mean “those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”

Title IX prohibits discrimination in educational programs on the basis of sex.  The Letter advises schools to “treat a student’s gender identity as the student’s sex for the purposes of Title IX.”  It instructs schools that, when a student or parent notifies a school that the student will “assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.”  The Letter does not require a student to have made formal changes, such as changing the sex on a student’s birth certificate, before the accommodations are put in place.

The Letter recommends, among other things, that schools allow transgender students to use restrooms, locker rooms, housing, and overnight accommodations consistent with their gender identity.  It advises that transgender students may not be unnecessarily excluded from extracurricular activities and single-sex classes based on their gender identity.  Notably, the Letter does not change participation in girls and boys athletic competitions and allows sex-segregated teams for contact sports or when selection is based on competitive skill.

Before the Letter was issued, many schools were working with transgender students on an individual basis to accommodate their needs.  Some schools allowed the individual student to choose which restroom to use.  Others designated separate one-person facilities for student use.  Other schools provided no accommodations and required transgender students to use the facilities that matched their biological sex.

Nationwide, school policies have differed on transgender restroom access, partly because of different laws in each state.  Some states have laws prohibiting discrimination based on gender identity.  In those states, the restroom question is easy to answer.  The student may use the restroom of the gender with which he or she identifies.  In states like Texas where there is no statute on point, the answer has been less clear.  School districts have exercised more local discretion as they responded to students on a case-by-case basis.

What does Texas law say? 

Texas does not have a statute that expressly prohibits discrimination on the basis of gender identity.  Currently, there are no school-related cases from Texas courts, the Fifth Circuit, or the United States Supreme Court which give binding legal precedent that Texas school districts must follow with respect to transgender students.  Nevertheless, Texas schools must follow their own policies which prohibit discrimination and harassment on the basis of gender.  Additionally, Title IX applies to Texas schools and prohibits discriminating against students on the basis of sex in education programs and activities.

The Letter offers guidance to schools, but it is not binding legal authority.  However, schools that are found to be noncompliant with OCR’s guidance may be subject to investigation and possible sanctions, including the loss of federal funds.

Texas Sues the Federal Government

Ten days after the Letter was issued, Harrold ISD adopted a policy limiting restroom access by biological sex.  Two days later, Harrold ISD, the State of Texas, and eight other states filed suit in the Northern District of Texas, Wichita Falls Division, against the federal government and several federal departments and agencies, including the Department of Education and the Department of Justice.  The lawsuit alleges that the Letter has “no basis in law” and seeks to bar the federal agencies from enforcing their guidance nationwide.  Two additional states have joined Texas as plaintiffs.  On July 6, the plaintiffs asked the court to enter a nationwide injunction against the defendants to prevent them from enforcing the guidance set forth in the Letter.

On July 27, twelve states and the District of Columbia filed an amicus brief opposing the relief sought by Texas and its co-plaintiffs.  They support the guidance in the Letter and do not want to be subject to a nationwide injunction that would extend into their states.  Importantly, these states have statutes that extend protection to transgender people through definitions of sex discrimination or prohibitions on discrimination on the basis of gender identity.  A nationwide injunction could contradict laws currently on the books in those states.  On August 3, the plaintiffs filed a reply brief in support of the injunction.

Litigation in Virginia

Meanwhile, in Virginia another high-profile legal battle is heating up in G.G. v. Gloucester County School Board.  There, a transgender student sued his school after the school board passed a rule requiring that students use the restroom corresponding with their biological sex.  Before the board action, the student (who was born biologically female but identifies as male) had been allowed to use the boys’ restroom without incident.  The Court of Appeals in the Fourth Circuit issued a preliminary injunction allowing the plaintiff to use the boys’ restroom and prohibiting the school from enforcing its rule on restroom access, pending further court action.

On August 3, the United States Supreme Court issued a stay on the Fourth’s Circuit’s preliminary injunction.  The stay puts that injunction “on hold” and allows time for the Gloucester County School Board to file a petition for a writ of certiorari and ask the Supreme Court to take up the case.  If the Supreme Court grants the writ and takes up the case, it may issue binding legal precedent that schools across the nation will have to follow.

Key Points for Texas Schools

Our firm will keep a close eye on these cases and help our clients comply with the law as it develops.  In the meantime, there are a few key points schools should keep in mind:

  • Schools must take action to protect students from harassment, bullying, and discrimination. Regardless of a student’s gender identity or where a student uses the restroom, all students should be treated with equal dignity and respect.
  • Schools are not required to change a student’s name on school records, diplomas, and transcripts unless the student’s name is changed legally.
  • When a student asks to be called by a preferred name that corresponds to his gender identity, that request should be honored, just as a school would allow a student named Robert to be called Bobby. Although permanent school records must match a student’s legal name, a student’s preferred name may be used on class rosters, identification badges, and awards.
  • A transgender student should be allowed to dress according to his gender identity, so long as the student conforms to the dress code of that gender.
  • Schools should ensure that transgender students have equal access to school programs and activities. Beginning August 1, 2016, UIL rules require that schools use a student’s birth certificate to determine eligibility for certain athletic competitions.
  • Schools should respect student privacy and refrain from disclosing personal information about students, in compliance with FERPA. School records and personally identifiable student information (which may include transgender status) should not be disclosed, except to school personnel who have a legitimate educational interest in the information.
  • The question of restroom access has not been legally settled in Texas. In each situation, schools are working to balance several competing interests:  students’ rights to be protected from discrimination, equal access to educational programs, privacy, and safety concerns.  Whenever possible, schools should work closely with legal counsel, students, and families to reach practical solutions for all parties involved.

Until the legal issues are settled in Texas, schools may find themselves in a “Catch 22” situation when these questions arise.  The lawyers at Leasor Crass are here to help you work through these issues and comply with the law.

Title IX Protects Transgender Students

by Melissa Mozingo

by Melissa Mozingo

According to federal guidance released Friday in a “Dear Colleague Letter,” all school districts must allow students to use restrooms and locker rooms “consistent with their gender identities.”  The joint letter from the Departments of Education and Justice sets out guidelines to “ensure that transgender students enjoy a supportive and nondiscriminatory school environment.”

The Departments maintain that requiring transgender students to use facilities that are inconsistent with their gender identities violates Title IX, the 1972 law that prohibits discrimination based on sex. Opponents of this sharply contested interpretation argue that Title IX’s protections are limited to discrimination that is based on biological sex, and do not extend to issues related to gender identity or transgender status.

Violations may have serious implications for districts that fail to ensure nondiscrimination on the basis of sex, including equal access to educational programs and activities, even in circumstances in which other students, parents, or community members raise an objection.

This includes claims of sexual harassment or violence about which a school knew or reasonably should have known.  U.S. Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (Apr. 29, 2014), available here.   Additionally, private court actions for individual damages may be brought under Title IX for known acts of harassment to which a school district is found to be deliberately indifferent.  Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629 (1999).

A separate best-practices document suggests ways to accommodate transgender students, such as allowing them to use alternate facilities, installing curtains for added privacy, or adjusting schedules to allow them to change when no one else is using the locker room.

While the guidance does not have the force of law, it does put public schools on notice as to how the Department of Education intends to enforce Title IX.  Districts should be aware that they are subject to an investigation and possible sanctions by the OCR for complaints related to gender-based discrimination.  Further, because Title IX is directly tied to federal education funding, the guidance carries an implied threat of loss of funds for non-compliance.

If you have any additional questions about the implications of this guidance, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

Title IX and Single-Sex Voluntary Youth Service Organizations: Can the Girl Scouts Use Ms. Smith’s Room Without Violating Federal Law?

by Dean Micknal

by Dean Micknal

Add this one to your “no good deed goes unpunished” file.  According to recently released federal guidance providing the local Camp Fire Girls with a classroom in which to meet, discounting the rental fees for a YWCA basketball camp, or even encouraging your 5th grade boys to join Scouts could land your district in hot water.

On December 15, 2015, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter” that may have serious implications for districts that provide space, staff or other resources to outside youth organizations with single-sex membership practices.

The letter, available here, reiterates that Title IX generally prohibits districts from excluding students from educational opportunities on the basis of sex.  OCR emphasizes that such exclusion can occur either directly, or by providing “significant assistance” to outside organizations that provide single-sex programming to a district’s students.

Thankfully, OCR acknowledges that there is a narrow exception that may allow districts to provide significant assistance to certain voluntary youth service organizations that have traditionally limited membership to students of one sex.  Despite this reassurance, OCR raises several key issues that require consideration.

First, the definition of “significant assistance” is extremely broad.  The letter explains that OCR will consider a variety of factors, including, but not limited to whether the district is providing financial support, staff, equipment, facilities, and/or intangible benefits (e.g. recognition and approval), as well as the terms under which the district provides similar privileges and resources to other organizations and whether the relationship is “occasional and temporary or permanent and long-term.”

Second, the exception is extremely limited.  In order to qualify, the organization must be voluntary, traditionally limited to members of one sex, principally limited to persons under nineteen years of age, and facility public service opportunities for its members.  Unless all these elements are present, the district may not provide significant assistance without violating Title IX.  Notably, such organizations as the YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls fall under this exception.  In other words, you don’t have to kick the Girl Scout troop out of Ms. Smith’s room just yet.

Third, and perhaps most importantly, even statutorily permissible relationships can open districts to potential Title IX violations.  The letter explains that the exemption is limited to the organization’s membership practices, cautioning that when a school district provides significant assistance to an otherwise exempt organization, the district “remains responsible for addressing any sexual or gender-based harassment against students participating in a program offered by a voluntary youth service organization that receives significant from the school district…to the same extent as if the school district were directly offering the program.”  Additionally, OCR warns that even exempted organizations must be considered when determining whether girls and boys have overall comparable educational opportunities.

In other words, allowing the YMCA free use of the gym for a summer basketball camp may not violate Title IX, but failing to properly investigate and address a report that a student experienced sexual harassment while the YMCA used the gym could constitute a violation.  Similarly, a district’s provision of significant assistance to the YMCA may be lawful, but it could also require the district to take steps to ensure that comparable opportunities are provided for its female students.

Districts should be aware that OCR buried one really significant point regarding this “comparability standard” in a footnote at the bottom of page five.  It is essential to understand that OCR will not consider programming provided by outside organizations that do not receive significant assistance from the school district when analyzing comparability of opportunities.  Consequently, allowing an organization to lease a district facility for purposes of hosting a girls’ basketball camp may not constitute a “comparable opportunity” for purposes of balancing the significant assistance provided in the form of the YMCA’s free use of the gym.

In conclusion, the guidance does not require districts to immediately sever ties with single-sex youth organizations.  Further, districts should keep in mind that the guidance is just that…guidance.  The DCL does not establish any new laws.  However, it does provide clarification as to how OCR interprets the existing law.  Consequently, districts should take time to review any existing arrangements and make an initial assessment regarding the following questions:

  • Is the organization’s membership practice exempted from Title IX?
  • Do safeguards exist to ensure that sex discrimination against students or employees in any other aspect of the organization’s program are properly addressed?
  • Are comparable opportunities being provided to the excluded sex?

If you have any additional questions about the implications of this guidance, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.