5010, Unlawful Harassment (Including Sexual Harassment) and Discrimination of Employees

SECTION 1: PURPOSE

North Colonie Central School District believes in the dignity of the individual and recognizes the rights of all people to equal employment opportunities in the workplace. In this regard, North Colonie Central School District is committed to a policy of protecting and safeguarding the rights and opportunities of all people to seek, obtain and hold employment without being subjected to unlawful harassment or discrimination in the workplace. It is North Colonie Central School District’s policy to provide an employment environment free from discrimination and harassment based on actual or perceived race, color, sex, gender, gender identity or the status of being transgender, creed, religion, national origin, disability, military or veteran status, age, sexual orientation, domestic victim status, marital status, genetic disposition, HIV or hepatitis carrier status or other classification protected under federal or state law. These categories are referred to as a “protected class” or “protected classes” in this Policy. In addition, North Colonie Central School District provides equal access to the Boy Scouts of America and other designated youth groups. Any person who engages in conduct prohibited by this Policy may be subject to corrective action up to and including termination from employment in accordance with legal guidelines, District policy and any applicable collective bargaining agreement(s), or in the case of a non-employee, an appropriate remedy up to and including termination of the business relationship,

A. Scope of Policy: This Policy applies to all North Colonie Central School District employees and all personnel in a contractual or other business relationship with North Colonie Central School District, including, for example, applicants for employment, paid or unpaid interns, temporary or leased employees, independent contractors, vendors, consultants, and volunteers. These groups are collectively referred to as “employees” in this Policy. Depending on the extent of North Colonie Central School District’s exercise of control, this Policy also may be applied to the conduct of non-employees with respect to unlawful harassment and/or discrimination of North Colonie Central School District employees in the workplace. This Policy applies with equal force on District property as it does at District-sponsored events, programs, and activities. This policy shall also constitute the grievance procedure required by Title IX of the Education Amendments of 1972 for complaints of sex discrimination, including harassment, within educational institutions receiving federal financial assistance.

B. Policy Objectives: By adopting and publishing this Policy, it is the intention of the North Colonie Central School District Board of Education to:

1. notify employees about the types of conduct which constitute discrimination or harassment prohibited by this Policy;
2. inform employees about the complaint procedures established by the District which enable any employee who believes (s)he is the victim of discrimination or harassment to submit a complaint which will be investigated by the District;
3. clearly advise all supervisory staff, administrators, and employees that discriminatory treatment of employees based on actual or perceived race, color, sex, gender, gender identity or the status of being transgender, creed, religion, national origin, disability, age, sexual orientation, marital status, domestic victim status, military or veteran status, genetic disposition, HIV or hepatitis carrier status or other classification protected under the law is strictly prohibited, that the District prohibits retaliation based on an individual’s opposition to discrimination or participation in an investigation or complaint proceeding under this Policy or the anti-discrimination statutes, and that no such person possesses the authority to harass or discriminate at the District; and
4. notify all employees that the District has appointed Compliance Officers who are specifically designated to receive complaints of discrimination and harassment under this Policy and to ensure compliance with this Policy.

NOTE: The Compliance Officers designated to receive and investigate complaints shall be appointed and identified by the Board of Education each year at its Annual Organizational Meeting. The titles and office locations of each Compliance Officer designated to receive and investigate complaints are set forth in District Policy 0100 and are listed on the District’s website at www.northcolonie.org/.

SECTION 2: DEFINITIONS

A. Prohibited Discrimination. Prohibited discrimination of employees can take the form of any communication and/or physical conduct by either a District employee, official, or third party engaged in school-sponsored activities which: (a) negatively impacts an employee’s employment opportunities and/or employment benefits; and (b) is based upon the employee’s actual or perceived membership in a protected class. Prohibited discrimination of employees can also take the form of harassment even where there is no tangible impact upon the employee’s employment opportunities and/or employment benefits. The phrase prohibited discrimination as used in this Policy includes all forms of prohibited harassment (defined below).

B. Prohibited Harassment. Prohibited harassment shall mean communication (verbal, written or graphic) and/or physical conduct based on an individual’s actual or perceived race, color, creed, religion, national origin, political affiliation, sex, gender, gender identity or the status of being transgender, sexual orientation, age, marital status, military status, veteran status, disability, domestic violence victim status, genetic disposition, HIV or hepatitis carrier status or other classifications protected under federal or state law when:

1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
3. Such conduct has the purpose or effect of substantially or unreasonably interfering with an individual’s work performance and/or creates an intimidating, hostile or offensive work environment; Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual;

With respect to sexual harassment, 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 made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, which interfere with the recipient’s job performance. Sexual harassment also occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions or privileges of employment. This is also called “quid pro quo” harassment. Any employee who feels harassed should report such harassment in accordance with this policy so that any violation of this policy can be corrected promptly. Any harassing conduct, even a single incident, can be addressed under this policy.

C. Prohibited Behavior. While it is impossible to list all of the possible forms of prohibited harassment, the following is a list of examples of conduct that may constitute harassment:

• Using slurs or derogatory terms based on race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status;
• Telling derogatory jokes or stories based on race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status;
• Displaying graffiti or other derogatory or insulting writings based on race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status;
• Making degrading comments about a person and/or his appearance based on his or her actual or perceived race, color, sex, gender, gender identity or transgender status, creed, religion, national original, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status;
• Sending, distributing, or displaying electronic images or electronic data (e.g., internet sites or e-mails) that are pornographic, profane, lewd, or inappropriate for a professional environment;
• Demeaning or criticizing an individual because of his or her actual or perceived race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status;
• Sabotaging, damaging or interfering with an individual’s work because of that individual’s race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status; or
• Threatening or intimidating and individual because of his or her race, color, sex, gender, gender identity or transgender status, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status or genetic disposition, HIV or hepatitis carrier status.
  
  Sexual harassment as a form of prohibited discrimination, can also take the form of the following types of behavior:
  
  
• 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;
  • Rape, sexual battery, molestation or attempts to commit these assaults;
• Unwanted sexual advances or propositions, such as:
  • Requests for sexual favors accompanied by implied or overt threats concerning the target’s job performance evaluation, a promotion or other job benefits or detriments;
  • Subtle or obvious pressure for unwelcome sexual activities;
• Sex stereotyping, which occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look; or
• Other behavior which is based on a person’s sex, is not welcome, and has the effect of creating a hostile learning or working environment for that individual.

As set forth above, these lists are not intended to be all-inclusive. Furthermore, while a single incident of these types of behavior may not create a hostile working environment, if such behavior is severe, persistent or pervasive, or if submission to such conduct is made either explicitly or implicitly a term or condition of employment, such conduct constitutes prohibited discrimination and/or harassment.

NOTE: This Policy does not regulate conduct which is unrelated to an individual’s actual or perceived membership in a protected class. Although North Colonie Central School District intends to create a respectful working environment that is free from inappropriate conduct or unfair treatment, this Policy does not apply to such conduct or treatment absent a relation to an individual’s membership in a protected class. In other words, this Policy is not designed to resolve personality disputes between colleagues or between an employee and his or her supervisor, unless such dispute is related to the employee’s actual or perceived race, color, sex, gender, gender identity or the status of being transgender, creed, religion, national origin, disability, military or veteran status, age, sexual orientation, domestic victim status, marital status, military or veteran status, domestic victim status or other classification protected under federal or state law.

SECTION 3: POLICY

North Colonie Central School District prohibits discrimination based on actual or perceived race, color, sex, gender, gender identity or the status of being transgender, creed, religion, national origin, disability, age, sexual orientation, marital status, military or veteran status, domestic victim status, genetic disposition, HIV or hepatitis carrier status or other status protected under federal or state law, and will not tolerate any form of unlawful discrimination or harassment.

North Colonie Central School District will take all steps necessary to prevent and stop the occurrence of unlawful discrimination and/or harassment in the workplace.

All employees, including, but not limited to, North Colonie Central School District officials and supervisory personnel, are responsible for promoting a work environment free from prohibited discrimination and harassment. All employees will be held responsible and accountable for avoiding or eliminating inappropriate conduct that may give rise to a claim of prohibited discrimination and/or harassment. Employees are encouraged to report violations to one of the Compliance Officers listed in District Policy 0100 and on the District’s website at www.northcolonie.org, in accordance with the Complaint Procedure set forth in this Policy. Officials and supervisors must take immediate and appropriate corrective action when instances of prohibited discrimination and/or harassment come to their attention to ensure compliance with this Policy. In addition to being subject to discipline if they engaged in harassing conduct themselves, officials and supervisors will be subject to discipline for failing to report suspected harassment or to otherwise allow harassment to continue.

Each employee is assured, pursuant to Section 6 of this Policy, that retaliation against an individual who makes a complaint or report under this Policy is absolutely prohibited and constitutes, in and of itself, a violation of this Policy.

Any questions regarding the scope or application of this Policy should be directed to one of the Compliance Officers listed in District Policy 0100 and on the District’s website at www.northcolonie.org.

A. Complaint Procedure for Employees

1. Notification Procedure: Prompt reporting of complaints is encouraged so that timely and constructive action can be taken before relationships become strained. Reporting of all perceived incidents of prohibited discrimination and/or harassment is encouraged, regardlessof the offender’s identity or position. An employee or other individual who feels aggrieved because of harassment or discrimination has several ways to make his or her complaint known:
   (a) An aggrieved person who feels comfortable doing so should directly inform the person[s] engaging in the harassment or discrimination that such conduct or communication is offensive and must stop.
   
   NOTE: Confronting the offender is NOT required. All employees have the right to file a good faith complaint without first communicating with the offender.
   
   (b) An aggrieved person who does not wish to communicate directly with the individual whose conduct or communication is offensive, or who has engaged in direct communication with the offending party which has been unavailing, shall contact a Compliance Officer listed in District Policy 0100, or the Superintendent of Schools.
   (c) An aggrieved person alleging harassment or discrimination by anyone with supervisory authority, or alleging failure of supervision to take immediate action on the individual’s complaint, shall contact one of the Compliance Officers, or the Superintendent of Schools.
   (d) An aggrieved person who is a member of a collective bargaining unit may also be entitled to file a grievance through the collective bargaining grievance procedure depending on the particular terms of the governing collective bargaining agreement. Such filing may not, in all cases, trigger an investigation pursuant to this Policy. Consequently, aggrieved persons are encouraged to simultaneously utilize the Complaint Procedure set forth herein, where appropriate.
   
   Making a Complaint: All complaints should be in writing. All employees are encouraged to use the District’s Complaint of Alleged Discrimination form. A copy of this form is attached to this Policy (see 5010-E.1). Additional complaint forms can be obtained from any Principal’s office within the District, or from a Compliance Officer, with no questions asked. Because an accurate record of the allegedly objectionable behavior is necessary to resolve a complaint of prohibited discrimination, all complaints should be reduced to writing. If an employee has any questions about or difficulty with filling out the complaint form, (s)he can obtain assistance from any one of the Compliance Officers. All complaints should include: the name of the complaining party, the name of the alleged offender(s), date of the incident(s), description of the incident(s), names of witnesses to the incident(s), and the signature of the complaining party.
   
   Once the complaining party has completed and dated a complaint, with or without the assistance of one of the District’s Compliance Officers, the written complaint should be personally delivered to one of the District’s Compliance Officers or placed in their mailbox.
   
   If for any reason an employee is uncomfortable submitting a written complaint to a Compliance Officer located in the building where that employee is generally assigned, the written complaint may be submitted, either by hand delivery or mail, to any one of the Compliance Officers listed in District Policy 0100 or to the Superintendent of Schools who will then advise a Compliance Officer.
   
   Complainants are expected to cooperate with the District’s investigation procedures by providing all relevant information relating to the complaint, as are other supervisory and non- supervisory employees having relevant or related knowledge or information.

B. Time for Reporting a Complaint: Prompt reporting of all complaints is strongly encouraged. All employees should be aware that appropriate resolution of discrimination complaints and effective remedial action oftentimes is possible only when complaints are promptly filed. Furthermore, complaining parties should be aware that statutes of limitations may constrain the time period for instituting legal actions outside of this Policy.

C. Confidentiality and Privacy: In recognition of the personal nature of discrimination complaints and the emotional impact of alleged discrimination, the District shall keep complaints as confidential as is consistent with a thorough investigation, applicable collective bargaining agreements, and other laws and regulations regarding employees. For the protection of all individuals who make complaints or are accused of prohibited discrimination, every witness interviewed during an investigation under this Policy will be advised of the confidentiality requirement and instructed not to discuss the complaint, the investigation, or the persons involved. To the extent complaints made under this Policy implicate criminal conduct, the District may be required by law to contact and cooperate with the appropriate law enforcement authorities.

D. Acknowledgment of Complaints: Upon receipt of a written complaint, the Compliance Officer, Building Principal, or Superintendent of Schools should endeavor to contact promptly the complainant to confirm that the written complaint has been received. If the complainant does not receive such confirmation promptly, (s)he is encouraged to file a second written complaint or contact a Compliance Officer or the Superintendent. The purpose of this acknowledgment procedure is to ensure that all written complaints are received by authorized individuals, carefully processed and promptly investigated.

SECTION 5: INVESTIGATION PROCEDURES

A. Timing of Investigations: The District will promptly investigate all allegations of discrimination and harassment prohibited by this Policy. The District will also attempt to complete investigations under this Policy promptly. The length of the investigation will depend upon the complexity and particular circumstances of each complaint.

B. Method of Investigation: Investigations will be conducted by the District’s Compliance Officers, the District’s legal counsel, and/or other impartial persons designated by the Superintendent of Schools. The primary purposes of all investigations under this Policy will be to determine:

1. Did the conduct complained of occur?
2. Did the conduct complained of violate this Policy? and
3. What remedial or preventative steps, if any, are recommended?

Investigations may include: fact-finding interviews, document review, depositions, observations, or other reasonable methods. The District’s investigators should pursue reasonable steps to investigate each complaint in a thorough and comprehensive manner. Any notes, memoranda, or other records created by the District employees or agents conducting an investigation under this Policy shall be deemed confidential and privileged to the extent allowed by law.

C. Notification to Complaining Party and the Accused Party: The Superintendent, or his or her designee, shall notify the complainant of the outcome of the investigation promptly. Such notification shall be in writing, include a brief summary of the factual findings and, wherever possible, shall include a summary of remedial measures that have been or will be taken by the District.

While reasonable efforts will be made to inform the complaining party about the outcome of investigations, the District will nonetheless consider the privacy rights of all parties involved in disseminating information obtained during and through the investigation.

The Superintendent, or his or her designee, shall promptly notify the person accused of violating this Policy, whether a violation of this Policy was found and what remedial measures, if any, will be taken by the District.

D. Remedial Measures: The North Colonie Central School District’s primary goal in responding to complaints of prohibited discrimination under this Policy is prevention. This Policy is intended to prevent all forms of unlawful discrimination and harassment in the District and put an end to any prohibited discrimination that is found to have occurred. While disciplinary action may be appropriate in certain instances, punitive measures are not the exclusive means for responding to prohibited discrimination. During the pendency of any investigation being conducted pursuant to this Policy, remedial measures may be taken if appropriate and necessary.

Any individual who is found to have engaged in prohibited discrimination, or conduct which may be prohibited by this Policy, may receive education, training, counseling, warnings, discipline, or other measures designed to prevent future violations of this Policy. Disciplinary action may include: warnings, suspension, or discharge from employment. Any third party found to have engaged in discrimination or harassment of an employee may be barred from District property.

SECTION 6: PROHIBITION AGAINST RETALIATION AND ABUSE OF THE POLICY

Retaliation is strictly prohibited by this Policy and by law against anyone who in good faith reports a suspected violation of this Policy, who assists in making such a complaint, or who cooperates in a harassment or discrimination investigation. Retaliation includes any adverse action in response to a complaint being made.

Complaints of retaliation should be brought directly to a Compliance Officer, Building Principal or the Superintendent of Schools. Such complaints will be promptly investigated. If retaliation is found, the person retaliating may be subject to corrective action up to and including termination from employment in accordance with legal guidelines, District policy and any applicable collective bargaining agreement(s), or in the case of a non-employee, an appropriate remedy up to and including termination of the business relationship.

Knowingly making a false complaint or report of harassment or discrimination is strictly prohibited by this Policy. An individual who in bad faith makes a false complaint or report of harassment or discrimination may be subject to disciplinary action up to and including termination in accordance with legal guidelines, District policy, and any applicable collective bargaining agreement(s).

SECTION 7: RECORD KEEPING

The District shall maintain a written record of all complaints of discrimination and/or harassment prohibited by this Policy for a period of at least six years. The District shall also document the steps taken with regard to investigations, as well as conclusions reached and remedial action taken, if any. The District shall also maintain these documents for, at a minimum, six years.

The District records regarding alleged discrimination shall be maintained separate and apart from personnel records.

SECTION 8: QUESTIONS

Any questions by employees of the District about this Policy or potential discrimination should be brought to the attention of one of the District’s Compliance Officers or the Superintendent of Schools. The names, addresses, and telephone numbers of the District’s Compliance Officers are listed in District Policy 0100 and on the District’s website at www.northcolonie.org.

SECTION 9: COMPLIANCE OFFICERS

See District Policy 0100 for the titles and addresses of the Compliance Officers.

SECTION 10: LEGAL PROTECTIONS AND EXTERNAL REMEDIES

Aside from the internal processes at the District, employees may also choose to pursue legal remedies for unlawful discrimination and harassment with the following governmental entities. While a private attorney is not required to file a complaint with a governmental agency, an employee may seek the legal advice of an attorney. In addition to those outlined below, employees in certain industries may have additional legal protections.

United States Department of Education

Inquiries or concerns regarding civil rights compliance by the District, including the application of Title IX and its implementing regulation, may be referred to the District’s Superintendent of Schools or a District Compliance Officer. Inquiries and complaints may also be directed to the Office for Civil Rights, New York Office, U.S. Department of Education, 32 Old Slip, 26th Floor, New York, New York 10005; telephone: (646) 428-3800; electronic mail: OCR.NewYork@ed.gov.

New York State Human Rights Law

The Human Rights Law (HRL), codified as N.Y. Executive Law, art. 15, § 290 et seq., applies to all employers in New York State with regard to form of harassment, including sexual harassment, and 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 New York State Division of Human Right (“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 at DHR, he or she can sue directly in state court under the HRL, within three years of the alleged discrimination. An individual may not file with DHR if they have already filed a HRL complaint in state court. Complaining internally to the District does not extend the time to file with DHR or in court. The one year or three years is counted from date of the most recent incident of harassment.

An employee does not need an attorney to file a complaint with DHR, and there is no cost to file with DHR. DHR will investigate a complaint and determine whether there is probable cause to believe that discrimination has occurred. Probable cause cases are forwarded to a public hearing before an administrative law judge. If discrimination is found after a hearing, DHR has the power to award relief, which varies but may include requiring the District to take action to stop the harassment, or redress the damage caused, including paying monetary damages, attorney’s fees 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. You may 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 can 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 1984

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” with the EEOC. The EEOC has district, area, and field offices where complaints can be filed. An employee can 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. If the harassment involves unwanted physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. In those cases and employee should contact the local police department.

SECTION 11: EFFECTIVE DATE AND POLICY DISSEMINATION

The Policy shall remain in effect until repealed or modified by the Board of Education. The Superintendent of Schools shall ensure that this Policy is adequately disseminated and made available to all employees of the District. Notification of this Policy shall be published at the beginning of each school year, to all new District employees, and on the District’s website at www.northcolonie.org/. In addition, copies of this Policy and Complaint Form shall be maintained in the office of each Compliance Officer, the office of each Building Principal,; and the District Policy Book.

The provisions of this Policy shall supersede and replace all prior District policies and regulations regarding employee discrimination and harassment, and related complaint procedures.

Ref: Title VII, 42 U.S.C. §2000-e2(a)
Executive Law §§ 290 et seq.

Adoption date: 4/27/09
Amended: 12/17/18