Mini Summit Bullying Harassment PPT

Report
Bullying & Harassment:
Its not just the Students
By: Nicole M. Proesch
AEA 267 Summit
April 2, 2014
Bullying & Harassment
in the Workplace
Bullying & Harassment in the Workplace
Harassment – Iowa Code § 708.7
• is a crime when one person “purposefully and without
legitimate purpose, has personal contact with another
person, with the intent to threaten, intimidate, or alarm
that other person.
• "Personal contact" does not require a physical touching
or oral communication, although it may include these
types of contacts.” Iowa Code section 708.7.
Bullying & Harassment in the Workplace
Harassment – Iowa Code § 718.4 • Harassment is also a crime when “any person willfully
prevents or attempts to prevent any public employee
from performing the employee's duties.”
Bullying & Harassment in the Workplace
Civil Suit for Discriminatory Harassment
• Discriminatory Harassment - When harassment is
based on the target’s race, color, religion, creed,
national origins, disability, or sex, it is a form of
discrimination.
• Liability - The harasser – and the harasser’s employer
– may be sued in civil court for monetary damages.
• Principles of Sexual Harassment - also apply to race,
color, religion or national origin.
Bullying & Harassment in the Workplace
SEXUAL HARASSMENT
• There are two broad categories of sexual harassment in
the workplace:
1) quid pro quo
2) hostile work environment
Bullying & Harassment in the Workplace
SEXUAL HARASSMENT - 29 CFR §1604.11
• Sexual harassment - as unwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature when:
– submission to such conduct is made either explicitly or implicitly
a term or condition of an individual's employment,
– submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such
individual, or
– such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment.
Bullying & Harassment in the Workplace
SEXUAL HARASSMENT IN THE WORKPLACE
McElroy vs. State of Iowa & ISU
• A state university graduate student filed a sexual harassment claim
against university and the state, alleging that university failed to
protect her from professor's sexual harassment, and that university
retaliated against her by changing the terms of her employment.
• The sexual harassment consisted of
– Repeated unwelcome touching
– Grossly inappropriate comments
– Month long trip – a two room suite with both beds in one room – the
student protested and the professor got upset
– The student was subjected to massage of her feet against her will
while the professor disclosing intimate details of his sex life.
– A one point the professor left the room stating he had “messed
himself”
– The professor threatened to leave her in Russia – he had maintained
her passport “for safekeeping.”
Bullying & Harassment in the Workplace
SEXUAL HARASSMENT IN THE WORKPLACE
McElroy vs. State of Iowa & ISU cont.
• Shortly after the trip the student filed a sexual harassment
complaint with the ISU Affirmative Action Office.
– The student was reassigned to another professor however, the
professor continued to harass the student.
– An investigation concluded the professor violated the sexual
harassment policy and created a hostile work environment which
interfered with the students academic progress.
– ISU eliminated contact between the two, required the professor to go
through sexual harassment training, and suspended him without pay
for one year. Proceeding to fire the tenured professor were stopped
after he was diagnosed with terminal cancer.
• The student filed suit against for sexual harassment in
employment and in education.
Bullying & Harassment in the Workplace
SEXUAL HARASSMENT IN THE WORKPLACE
McElroy vs. State of Iowa & ISU Cont.
• The District Court entered judgment on jury verdict in favor of
university. Graduate student appealed.
• The Supreme Court, 637 N.W.2d 488, reversed and remanded
because of an improper jury instruction.
• On remand the District Court entered judgment on jury verdict
awarding student over $3 million in damages.
• The case later settled after the case was remanded back to district
court for an undisclosed amount.
[McElroy vs. State of Iowa & Iowa State University of Science &
Technology, 703 N.W. 2d 385 (2005)]
Bullying & Harassment in the Workplace
PROTECTION FROM SUCCESSFUL HARASSMENT CLAIMS
•
•
•
•
•
•
Educate staff.
Written policies staff understand.
Investigation of complaints.
Document, document, document.
Keep the interested parties informed.
Discipline appropriately (action must be reasonably calculated to
end the harassment).
• Contact school’s insurer and/or attorney, especially if the complaint
comes from the ICRC/EEOC (civil rights – if complainant is an
employee) or ICRC/OCR/USED (if complainant is a student).
School Anti-Bullying &
Anti-Harassment Law
School Anti-Bullying, Anti-Harassment Law
(Iowa Code section 280.28
• Requires every school district and accredited
nonpublic school in Iowa to have a policy that
they will not tolerate bullying and harassment.
• Bullying & Harassment are combined together
under this law.
• I used to say that the worst thing an educator
could do was nothing….
School Anti-Bullying, Anti-Harassment Law
The worst thing an educator can do
is to be part of the bullying and harassment.
School District Liability
School District Liability
Types of Cases
• There are two lines of student harassment cases
against schools and school employees
1)
2)
Harassment by school employees and
those alleging peer-to-peer harassment.
• Focus on staff to student harassment –
– But schools and teachers can also be accountable for not stopping
peer-to-peer harassment.
School District Liability
Supreme Court Case
• In 1998, the U.S. Supreme Court first gave students a
private right of action for monetary damages for sexual
harassment by a school employee against the school if
the plaintiff proved the following:
1)
2)
That the school had actual notice of the misconduct; and
That the school was deliberately indifferent to the
misconduct.
• The plaintiff must show that the school made a
deliberate decision not to remedy the misconduct.
[Gebser v. Lago Vista School District, 524 U.S. 274, 118 S.Ct 1989
(1998)]
Staff on student
bullying & harassment
Staff on student bullying & harassment
Volunteer Sexual Harassment
• Southern District of Iowa - A student alleged sexual harassment by
a school volunteer (same analysis as if the alleged perpetrator
were an employee of the district).
– A few previous unsubstantiated complaints about this volunteer – a
70+ year old man.
– There was no reason for the school district to remove him as a
volunteer when its investigation was done in a reasonably thorough
manner and did not disclose any problems.
• Result: Therefore, the district’s motion for summary judgment was
granted.
[Gordon ex rel. Gordon v. Ottumwa CSD, 115 F.Supp.2d 1077 (S.D. Iowa 2000).]
Staff on student bullying & harassment
Teacher Verbal, Physical & Sexual Abuse
• 8th Circuit – Arkansas - A group of students & their parents sued
the school based on a teacher’s alleged verbal, physical, and
sexual abuse.
• Result: The court granted summary judgment in favor of the school
because the school was not liable for:
– verbal abuse because verbal abuse is not a constitutional violation;
– physical abuse because the school had no notice of a pattern of such
abuse; and
– for sexual abuse, again because the school had insufficient notice of
such abuse.
[Doe v. Gooden, 214 F.3d 952 (8th Cir. 2000).]
Staff on student bullying & harassment
Teacher Sexual Harassment
• Iowa - A former student of the teacher involved – sued the teacher
for their “consensual” sexual relationship.
– The teacher was previously discharged from his former district for the
same misconduct.
– That district impleaded the former school district for not telling it about
his prior bad acts.
• At the time of this lawsuit, “sexual exploitation of a student” was not
criminal.
• Result: the Iowa Supreme Court stated that no crime = no duty to
protect the student and others like her from this predatory teacher.
• The result would not be the same today.
[Stotts v. Eveleth, 688 N.W.2d 803 (Iowa 2004).]
Staff on student bullying & harassment
Teacher Sexual Harassment
• West Virginia - A West Virginia elementary school student had
been sexually fondled by his teacher in the classroom, used drugs
and alcohol with the teacher after school hours, and eventually
engaged in sex acts with the teacher.
• The student sued the school board and various school officials.
• Issue: Whether the school principal was deliberately indifferent
to the risk of the teacher sexually abusing his students.
– The principal had prior knowledge that the teacher had been seen
in the school hot tub with male students, at least one of whom was
nude.
– The teacher had also been convicted of providing alcohol to male
students on a trip in his car, and had allegedly sexually abused
them.
[Arbaugh v. Bd. Of Educ., County of Pendleton, 329 F.Supp.2d 762 (N.D.W.Va.
2004).]
Staff on student bullying & harassment
Teacher Sexual Harassment
• Georgia - By all accounts, a male Georgia high school student had
a “consensual” sexual relationship with one of his teachers – a
married female.
– This was not a crime under Georgia law.
– The teacher provided the student with prescription drugs and pain
pills, paid his speeding tickets, and gave him clothes, a cell phone,
and money.
– Anonymous reports of their relationship reached school administrators,
who investigated thoroughly.
– Their investigation was met with denials from both student and
teacher. (In fact, the student used the investigation to extort more
materials goods from the teacher to “buy” his silence.)
– Once the school was able to make a connection between the student
and teacher, it fired the teacher.
• Result: When the boy’s parents sued, the court determined that the
school was not liable because its officials had acted properly.
[Sauls v. Pierce County School District, No. 03-16267 (11th Cir. 2/9/05).]
Staff on student bullying & harassment
Teacher Sexual Harassment
• New York - A nonpublic school student’s parents filed a negligent
hiring and supervision lawsuit against the school for damages.
– The student had been sexually abused by a teacher while the student
was in the teacher’s 1st grade class;
– the abuse continued while the student was in 2nd and 3rd grades.
– The court held that the fact that the teacher removed the student from
his 2nd and 3rd grade classes on a weekly basis without explanation
(and with the other teachers’ consent) was sufficient to raise a triable
issue as to whether those teachers breached a duty of ordinary care
toward the child.
• Result: The school itself was granted summary judgment on the
negligent hiring claim, as there was not a sufficient showing that
the school was or should have been aware of the proclivities of the
teacher.
[Doe v. Whitney, 779 N.Y.S.2d 570 (N.Y.A.D. 2 Dept. 2004).]
Staff on student bullying & harassment
Teacher Sexual Harassment
• North Carolina - A North Carolina teacher is alleged to have
encouraged and facilitated a sexual relationship between two
students – and then videotaping the students having sex.
– The teacher made his home, car, and office available to the students.
– The school resource officer knew of the teacher’s actions but did not
inform school officials and did nothing to put a stop to the abuse.
• Result: In denying the motion to dismiss filed by the school
employees, the court stated that the employees were not entitled to
statutory immunity because their actions were beyond the scope of
their public duties. The case will proceed to trial.
[Smith v. Jackson County Bd. of Educ., 608 S.E.2d 399 (N.C. App. 2005).]
Staff on student bullying & harassment
Administrator Sexual Harassment
• Illinois - The dean of students at a public middle school in Illinois
attended a delinquency hearing in juvenile court on behalf of a
student.
– The educator persuaded the juvenile court judge to release the
student to his custody, stating that he would take the student to
register for school.
– Instead, he took the student to his home and sexually abused him.
• Result: Because the dean used his authority as a public school
educator to deceive the court, the lawsuit against him under a
federal law authorizing court action against “state actors” may
proceed to trial.
• Furthermore, the lawsuit against the school district is proceeding
for a jury to determine whether the district’s failure to put any
restrictions on the dean regarding his contact with students during
police and state agency investigations constituted deliberate
indifference toward the welfare of the student.
[Doe v. Smith, 470 F.3d 331 (7th Cir. 2006).]
Staff on student bullying & harassment
Substitute Teacher Sexual Harassment
• South Carolina – A complaint filed against a school by the parents
of a student who was involved in a sexual relationship with a
substitute teacher will proceed to trial. The parents allege that the
school acted with gross negligence in failing to protect their child
from the known danger of a substitute teacher’s inappropriate
interest in young girls.
[Doe v. Greenville County School District, 2007 WL 2415751 (S.C. 8/27/07).]
Staff on student bullying & harassment
Coach Sexual Harassment
• North Carolina - A male coach’s alleged behavior of
asking female students (on his soccer team) about their
sex lives, if proven, constitutes sexual harassment.
This behavior creates a hostile or abusive environment
for the female students, given the disparity of power
between coach and students.
[Jennings v. University of North Carolina, 2007 WL 1040592 (4th Cir. 4/9/07).]
Staff on student bullying & harassment
P.E. Teacher & a Disabled Student
• 11th Circuit – A P.E. teacher entitled to qualified immunity where
his conduct did not shock the conscience.
• Teacher was alleged to have shoved disabled student head-first
into a trash can and then pulled the student out by his legs.
• Investigation indicated that the teacher and student frequently
engaged in horseplay in a joking manner.
• Supt concluded that the teacher was not being malicious or meanspirited, and only counseling was provided to the teacher not to
engage in horseplay with his students.
[Mahone v. Ben Hill County Sch. Sys., 54 IDELR 183 (11th Cir. 2010)]
Staff on student bullying & harassment
Ethical Violations
• Board of Educational Examiners can also file ethical
charges against a licensed practitioner for being in
violation of Iowa Administrative Code 282 IAC
25.3(6)”c” and “d”
– Failing to make reasonable efforts to protect the health
and safety if the student or creating conditions harmful to
student leaning; and
– Conducting professional business in such a way that the
practitioner repeatedly exposes students or other
practitioners to unnecessary embarrassment or
disparagement.
•
Staff on student bullying & harassment
Special Education Teacher
•
A students mother recorded 27 hours of audio that occurred in the
teachers classroom. The recordings revealed the teacher:
– mocking a student when he was told to go “home” and he went to his seat
and sat down.
– treating a student like a dog giving him commands to drop dead, roll over,
shake, and jump – then laughing
– yelling at a student to stop screaming
– After a student went to the restroom the teacher commented “does it smell
stinky,” “Smell your butt.”
– repeated a trigger word over and over to a student to get him to scream.
– Inappropriately placed students in timeouts for up to 90 minutes
– Minimal instruction was taking place –
•
The BOEE found that the teacher violated 282 IAC 25.3(6) “c” & “d.”
– Indefinite suspension for not less then five years
[In the matter of Kristi Bottoms, 12BEE024 (Bd. Of Educ. Exam’rs, April 23, 2013)]
Staff on student bullying & harassment
Elementary Education Teacher
•
A complaint received alleging the teacher created a hostile learning &
working environment. The investigation revealed that the teacher:
– Called students names and used intimidating and aggressive behavior toward
students and coworkers.
•
•
The BOEE was charged with violating 282 IAC 25.3(6) “c” & “d.”
Settlement –
– The teachers licenses were expired and she agreed not to renew them until
undergoing an evaluation and any treatment recommendations, counseling for
anger management & training in leadership strategies.
– Added to the National Association of State Directors of Teacher Education and
Certification (NASDTEC).
[In the matter of Gayle Tucker, Case No. 12-61 (Bd. Of Educ. Exam’rs, April 5,
2013)]
Staff on student bullying & harassment
High School Coach
•
A complaint received alleging the coach violated professional ethics code.
The investigation revealed that the coach:
–
forced a student athlete to undergo threatening and derogatory remarks from
the coach and other student athletes.
– Required student athletes to complete an unreasonable amount of conditioning
drills after practice as physical punishment for protected speech
– Delegated coaching duties to an individual not licensed to practice
– Used language with student athletes that was profane, demeaning, and or
inappropriate.
•
•
The coach was charged with violating 282 IAC 25.3(6) c, d, j, & l.
Settlement –
– The coach completed a course on Theory and Ethics of Coaching
– Received a Written Reprimand
– Added to the National Association of State Directors of Teacher Education and
Certification (NASDTEC).
[In the matter of Tom Mihalovich, Case No. 12-136 (Bd. Of Educ. Exam’rs, June
18, 2013)]
Parent bullying & harassment
Parent bullying & harassment
Scenario:
• An angry parent upset with the school about a situation affecting
their child. The parent does not get the answers they want so they
continue to call the school and harass employees over the phone.
The parent then shows up demanding to speak with the principal.
– Bullying - Is this bullying and harassment under 280.28?
• No. Because they are not an employee or student.
– Harassment - This could be harassment under Iowa Code §§708.7 &
716.7.
• No Contact Order - The school can seek an NCO a under a
criminal proceeding
– Trespassing – Iowa law prohibits a person from entering or remaining
on property without justification after being asked to leave or stay
away by a public employee with the duty to supervise the property.
• Administrators have the right to ask a person to leave if they are
aggressive or threatening or otherwise disruptive at school or
school activities.
Lessons Learned:
Staff to Student Bullying & Harassment
Lessons Learned
SO, WHAT HAVE WE LEARNED FROM THE ABOVE CASES?
• The Legal Standard is (probably) deliberate indifference
• If a school employee knows of harassment and does nothing, this
is deliberate indifference.
• If a school employee should have known of harassment and does
nothing, this is deliberate indifference.
• Therefore, to avoid liability – take steps that are reasonably
calculated to alleviate or to prevent harassment.
• Even if the steps are not successful, you will be protected.
• “Protected” does not mean you will not be sued; it means you will
not be sued successfully.
Lessons Learned
Best Practices
•
•
•
•
•
Know and follow your written policy.
Make sure staff knows the lines of communication.
Staff should be required to report harassment.
Make sure students know how to report incidents.
Separate the harasser from the victim, but don’t ostracize the
victim in the process.
• Follow up with the target to make sure s/he has not suffered
retaliation for making a report or complaint.
• Document, document, document.
• Tell the parents of their own child what steps you are taking (in
other words, do not violate FERPA, the federal Family Educational
Rights and Privacy Act).
Lessons Learned
Best Practices - Sexual Harassment Allegations
• In addition to the above:
– Launch an immediate investigation into the allegations.
– Involve law enforcement if the allegations suggest possible
criminal activity, or make sure the target and target’s family
know about this option.
– Respond immediately to any new information.
Lessons Learned
BUT, OUR RELATIONSHIP WAS CONSENSUAL
• Recognizing that there is truly no such thing as a
“consensual” relationship when the authority
positions between teacher and student are so different,
the Iowa legislature amended Iowa Code section
709.15 two years ago to create a new crime, sexual
exploitation by a school employee.
• Key elements:
– BOEE licensed
– Attended within 30 days
Lessons Learned
Related laws:
• License Revocation - Licensed school employee convicted
of sexual exploitation of a student will have license revoked.
• Report to BOEE - School district MUST report to Board of
Educational Examiners if a licensed employee resigns or is
fired or whose contract is not renewed because of
allegations of sexual exploitation of a student (or any
incident or allegation of misconduct that, if proven, would be
a sex crime or a forcible felony).
• Required reporting:
– Board of School Districts or AEA
– the superintendent of the school district or the chief
administrator of AEA
– Authorities in charge of a nonpublic school
Lessons Learned
IF YOU DO GET SUED…
– Know that Iowa Code chapter 670 (Municipal Tort
Liability Act) provides three protections for public
employees who are acting within the scope of their
employment or duties:
1. Legal representation (this does not mean, however, that
the employee gets to choose his/her own attorney)
2. Payment of any settlement/verdict
3. Protection from disciplinary action by the employer
By: Nicole M. Proesch
Legal Counsel
Iowa Department of Education
[email protected]
515-281-8661

similar documents