SCHOOL DISTRICTS MUST ADOPT SPECIFIC SEXUAL HARASSMENT POLICIES BY JANUARY 15, 2018

By Anthony Scariano III and James Petrungaro

 December 1, 2017 

            Recently, the news media have been rife with reports of sexual harassment that has occurred in many of our nation’s most valued and well-known institutions. Noticing this trend, and increased amounts of complaints from its own members, the Illinois General Assembly has acted with legislation.  

Public Act 100-0554, in relevant part, amends the State Officials and Employees Ethics Act so that “governmental units,” which include school districts, must adopt a resolution to establish a policy prohibiting sexual harassment with the following requirements: (1) the policy must prohibit sexual harassment; (2) the policy must include details on how an individual can report an allegations of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Illinois Department of Human Rights; (3) the policy must include a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Illinois Whistleblower Act, and the Illinois Human Rights Act; and (4) the policy must include the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. 

            For school districts that subscribe to the Illinois Association of School Board’s Policy Reference Education Subscription Service (“PRESS”) and have adopted the model Policy 5:20, your policy likely already substantially complies. The PRESS model policy needs modification to clarify the process for filing harassment claims and to expand the recitation of available laws providing whistleblower protections.  

            PRESS is expected to release modifications to Policy 5:20 sometime in January 2018. The mandated policy must be adopted by school districts no later than January 15, 2018. The attorneys of Scariano, Himes and Petrarca, Chtd. stand ready to assist your Board with complying with this new legislative requirement. Should your District wish to modify its policy before PRESS releases its expected update in January 2018, or if your District does not participate in PRESS and you need assistance, do not hesitate to contact us.

 

DEPARTMENT OF EDUCATION FINDS THAT DISTRICT DISCRIMINATED AGAINST TRANSGENDER STUDENT IN PROHIBITING LOCKER ROOM USE

November 6, 2015

By A. Lynn Himes and Parker R. Himes 

On November 2, the Department of Education’s Office of Civil Rights (“OCR”) concluded that a Chicago-area high school district discriminated against a transgender female student by prohibiting her use of the girls’ locker room.

The student had been born male but had identified from a young age as female.  During middle school, the student transitioned to living full-time as a female.  Since middle school, the student has presented female appearance, completed legal steps (e.g. obtaining a passport reflecting the gender change), and taken an ongoing course of hormone therapy.

Before enrolling at the high school, the student’s parents communicated extensively with the district to plan her transition to high school.  The district honored the student’s request to be treated as female in all respects except the request to be provided access to the girls’ locker rooms.  Importantly, the district identifies the student by her female name and uses female pronouns, designates her gender as female in its computer system, provides her unlimited access to the girls’ restrooms, and, upon receipt of permission by the IHSA, allows her to participate in girls’ athletics. 

After multiple conferences with the parents and a tour of the girls’ locker room facilities, the superintendent concluded, however, that it would not be practicable to honor her request to change privately in the locker rooms because the stalls were too few and the students too many.  The superintendent explained that the decision was based not only on the particular student’s rights and needs, but also on the privacy concerns of all students.

OCR’s legal analysis begins with the acknowledgement that the district “has treated [the student] consistent with her gender identity as a girl,” yet, “as a result of the District’s denial of access to the girls’ locker rooms, [the student] has not only received an unequal opportunity to benefit from the school’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.”  Further, “[t]he denial of access has also meant that, in order to satisfy her graduation requirements and receive a high school diploma, [the student] has no other option but to accept being treated differently than other students by the District.”  Based on evidence that the district had installed some privacy curtains in one of its locker rooms, OCR also concluded that the district could accommodate the student by installing privacy curtains in all the locker rooms, something that OCR declared that the district had the financial ability to do.

While this OCR opinion is technically binding on only the district involved, it likely forecasts how OCR will come down on a similar matter.  Courts across the country, however, have not uniformly followed OCR, resulting in court opinions that come down on either side.  The Firm will be monitoring this issue and will keep you informed of any important developments.

Should you face a similar issue, we urge you to contact an attorney at the Firm so we may help guide you through this novel area of the law.

Supreme Court Clarifies Long Reach of Title VII in Religious Discrimination Case

July 1, 2015

By Anthony Scariano III and James A. Petrungaro

 

            The U.S. Supreme Court has weighed in again on unlawful employment practices. In EEOC v. Abercrombie and Fitch, the court analyzed the religious accommodation standard in Title VII of the Civil Rights Act of 1964, holding that discrimination occurs when an applicant’s need for a religious accommodation is a “motivating factor” behind the decision not to hire. What makes this case significant is that the court held that an employer commits religious discrimination where it fails to hire because of a candidate’s suspected need for a religious accommodation, even if an accommodation was not actually requested or needed.

            Samantha Elauf is a practicing Muslim who, as part of her faith, wears a headscarf. She applied and interviewed for a job at one of Abercrombie’s stores. Abercrombie has a “look policy” that prohibits its employees from wearing caps. Since Abercrombie’s interviewer was concerned that Elauf’s headscarf would violate the policy, the interviewer asked a district manager whether the headscarf would be a problem. In doing so, the interviewer informed the manager that she believed that Elauf wore the headscarf because of her faith. The manager told the interviewer that the look policy would be violated and directed the interviewer not to hire Elauf. The EEOC filed a lawsuit against Abercrombie on Elauf’s behalf, contending that Abercrombie intentionally discriminated against her by refusing to hire her.

            Abercrombie defended its decision by arguing that Elauf never asked for a religious accommodation, meaning Abercrombie did not actually know whether she was wearing her headscarf for religious reasons or whether she desired a religious accommodation. But the Court rejected that position, holding that Abercrombie’s motive was dispositive of the issue, not its actual knowledge. Notably, the Court’s reasoning in this Title VII case stands in stark contrast to its interpretation of the Americans with Disabilities Act, which prohibits discrimination based upon known disabilities.  

            In its decision, the Court also explained title VII’s religious accommodation standard as it applies to otherwise “neutral” workplace policies, such as Abercrombie’s “no cap” rule. There was not much dispute that Abercrombie’s “no cap” policy was neutral. But the Court clarified that a neutral policy cannot overcome Title VII’s religious accommodation standard, stating: “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment…”

           The Court’s decision in Abercrombie exhibits the broad reach of anti-discrimination laws. Where employers make discriminatory hiring decisions, even if based upon a mere suspicion of an applicant’s need for religious accommodation, they risk being in violation of Title VII. Employers are also on notice that a religious accommodation need will prevail over neutral employment policies, though the Court did not rule out the usual “undue burden” defense. If you have any questions or concerns about Abercrombie’s application to your interviewing or application process, please do not hesitate to contact us. 

Breaking Down OCR’s Recent Guidance on the Permissibility of Single-Sex Education

December 10, 2014

By Anthony Scariano III

As you may know, the United States Department of Education’s Office of Civil Rights (“OCR”) recently issued general guidance on the acceptability of offering single-sex classes and extracurricular activities in schools that receive federal financial assistance. In its guidance, the OCR reminds educators that Title IX does allow the intentional separation of students by sex in: (1) contact sports in physical education classes; (2) classes or portions of classes that deal primarily with human sexuality; and (3) non-vocational classes and extracurricular activities within a coeducational, non-vocational elementary or secondary school (i.e. the majority of course offerings in traditional K-12 public schools). However, the guidance overwhelmingly focuses on number (3) above; importantly, the criteria that need to be met in order to comply with Title IX when establishing single- sex classes and extracurricular activities.

In order to offer a single-sex class or activity, a school must meet a somewhat demanding two-part justification for doing so before offering the class or activity. First, each single-sex class must be based on an exceedingly persuasive objective to either: (1) improve educational achievement through diverse educational opportunities (the “diversity objective”); or (2) meet the particular, identified educational needs of its students (the “needs objective”). Second, the school must: (1) implement its objective in an evenhanded manner; (2) ensure that student enrollment in the single-sex class or activity is completely voluntary; (3) provide a substantially equal coeducational class in the same subject; and (4) periodically evaluate the class to ensure Title IX compliance.

Regardless of the objective that is asserted as justifying the gender separation, a school must show that the single-sex nature of the class is substantially related to meeting the identified objective. This, the OCR warns, must be directly supported by evidence. Such evidence may include the well-documented success of single-sex classes and activities in schools that are similar in population and setting, and research evidence that proves the effectiveness of single-sex classes and activities in similar circumstances.

Additionally, the OCR issued specific guidance on how to comply with the other aforementioned requirements. For example, the OCR details: (1) how to obtain “voluntary enrollment” in single-sex classes and activities; (2) what factors the OCR will consider when determining if a coeducational class is “substantially equal” to the single-sex class; and (3) how detailed the periodic evaluations must be, how often they must be issued, and to whom.

The OCR’s guidance regarding this issue is quite lengthy. It also provides numerous examples of how to comply with Title IX when offering these single-sex classes or activities. Before your District embarks to provide single-sex educational offerings, both we and the OCR recommend contacting your attorney to discuss the concept and strategize the appropriateness of the offerings. Similarly, if your district already provides single-sex offerings and you would like us to review compliance with Title IX, we stand ready to assist you. Since the OCR strongly recommends articulating a school’s justification for these classes and activities in writing and before offering the class or activity, please do not hesitate to inquire of your attorney at Scariano, Himes and Petrarca to complete this task for you.

ILLINOIS ADOPTS NEW PREGNANCY ACCOMMODATIONS LAW

 September 19, 2014

By Adam Dauksas

 Effective  January1,  2015,  Illinois  school  districts  must  begin  providing  reasonable  accommodations  to pregnant employees who request them.  In an expansion of pregnant employees’ rights beyond what is provided under the federal Family and Medical Leave Act (“FMLA”), the Governor signed into law House Bill 8 late last month, which amends several sections of the Illinois Human Rights Act.

This state law will soon make it a civil rights violation for an employer, after a job applicant or employee (including a part-time, full-time, or probationary employee) requests a reasonable accommodation, to not make such an accommodation for any medical or common condition related to pregnancy or childbirth.  Where the employer can demonstrate that the accommodation would impose an undue hardship on its normal operations, however, the accommodation need not be made.   The law provides examples of what a “reasonable accommodation” in this instance might be:

  • More frequent or longer bathroom, water, or rest breaks.
  • Private non-bathroom space for breastfeeding.
  • Seating.
  •  Assistance with manual labor.
  •  Light duty.
  • Temporary transfer to a less strenuous or hazardous position.
  • A part-time or modified work schedule.
  • Appropriate adjustment or modifications of examinations.
  • Time off to recover from conditions related to childbirth.
  • Unpaid leave.

In addition, the law makes clear that school districts will also be prohibited from denying employment opportunities or benefits to, or taking adverse action against, a pregnant employee if the denial or adverse action is based on the need of the district to make reasonable accommodations.  Further, districts will not be able to require a pregnant employee to accept a reasonable accommodation when she did not request one, nor can a district require an employee to take leave if another reasonable accommodation can be provided.  Moreover, under the law, school districts will not be allowed to retaliate against an employee because she requested, attempted to request, used, or attempted to use a reasonable accommodation.

Lastly, school districts will be required to provide notice to their employees concerning these new rights at a conspicuous location on the district’s premises where notices to employees are customarily posted and in any employee handbook.  The Illinois Department of Labor will prepare the notice documents and make them available on its website.

Should your district have any questions about these changes in the law, including what might constitute an “undue hardship,” please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

Supreme Court Makes It More Difficult To Successfully Sue Employers For Retaliation

July 5, 2013

By Adam Dauksas

 Editors’ Note: On June 24, 2013, the U.S. Supreme Court handed down decisions in two employment cases that significantly affect the scope of employment discrimination law, both of which are “friendly” to employers. In our last eBlackboard, we reviewed the Court’s interpretation of who is a supervisor for purposes of imputing liability to an employer in Title VII discrimination claims. In this eBlackboard, we review the stiffer legal standard the Court announced a plaintiff must meet in order to prevail on a retaliation claim under Title VII.

 Recently, the U.S. Supreme Court made it significantly harder for an employee to prove that an employer has unlawfully retaliated against him/her for having previously opposed, complained of, or sought remedies for, unlawful workplace discrimination.  The Court, in University of Texas Southwestern Medical Center v. Nassar, held that when pleading a retaliation claim, an employee must show that an employer’s desire to retaliate was not just a motivating factor for any adverse employment action, but was that action’s “but-for” cause.

 Dr. Naiel Nassar was a medical doctor of Middle Eastern descent who worked as both an assistant professor at the University of Texas Southwestern Medical Center and a physician at Parkland Memorial Hospital.  The university and hospital had an affiliation agreement, whereby the hospital would offer empty staff physician posts to university faculty members such as Dr. Nassar.  Dr. Nassar’s immediate superior at the university was Dr. Beth Levine.  Dr. Nassar alleged that Dr. Levine was biased against him because of his religion and ethnic heritage, and, on several occasions, Dr. Nassar met with Dr. Gregory Fitz, who was Dr. Levine’s supervisor, to complain about her alleged harassment.  Believing Dr. Levine was prejudiced towards him, Dr. Nassar tried to arrange to continue working at the hospital without also being on the university’s faculty.

 As Dr. Nassar negotiated with the hospital regarding his new position, he resigned from his teaching job with the university and sent a letter to Dr. Fitz and several others, in which Dr. Nassar stated that he was leaving because of Dr. Levine’s harassment.  In particular, Dr. Nassar stated that Dr. Levine’s harassment “stems from .. . religious, racial and cultural bias against Arabs and Muslims.”  Upset at Dr. Nassar’s portrayal of Dr. Levine, and concerned that the affiliation agreement prohibited Dr. Nassar from working at the hospital without also working at the university, Dr. Fitz protested to the hospital. As a result, the hospital withdrew its job offer.

 Dr. Nassar then filed a lawsuit against the university, alleging two separate violations of Title VII of the Civil Rights Act of 1964.  The first claim was for status-based discrimination, contending Dr. Levine’s racial and religious harassment had caused Dr. Nassar’s constructive discharge from the university.  The second claim was for retaliation, asserting that Dr. Fitz’s efforts to stop the hospital from hiring him were in retaliation for Dr. Nassar having complained about Dr. Levine’s harassment.  The issue before the Supreme Court was whether the same legal standard related to causation applied to both claims.

 With respect to status-based discrimination claims, which encompass discrimination on the basis of race, color, religion, sex, and national origin, the Court has long held that an employee need only demonstrate that one of those protected bases was a motivating factor in the adverse employment action.  This means that an employer can  be  held  liable  for  status-based  discrimination  even  though  other  non-prohibited  factors  (e.g.  job performance, attendance, etc.) also prompted the adverse employment action.   Before the Supreme Court, Nassar argued that this standard should also apply to retaliation claims.

But the Supreme Court disagreed.   Noting that the number of retaliation claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) “has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012,” the Court determined that a more stringent standard was warranted. Thus, to prevail on a claim of retaliation under Title VII, an employee must now prove that their employer’s desire to retaliate was the “but-for” cause of the disputed employment action.  This means that the alleged unlawful retaliation would not have occurred in the absence of the employer’s desire to retaliate.

This heightened causation standard is welcome news for employers, including school districts.  If a “motivating factor” standard were to instead be applied to employees’ retaliation claims under Title VII, frivolous claims would stand a much better chance of succeeding.  For example, if a probationary teacher was about to be non- renewed for legitimate, performance-based reasons, he/she could simply level a bogus charge of racial, sexual, or religious discrimination.  Then, once the non-renewal occurs, the teacher could allege that the school district had retaliated against him/her because of the previously-asserted discrimination charge.   Under a “but-for” cause standard, however, such a retaliation claim would almost certainly fail as the non-renewal would have occurred regardless of the teacher’s discrimination charge.

If you have any questions regarding this decision or how it may impact a case that your school district currently has pending, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

SUPREME COURT DEFINES “SUPERVISOR” FOR TITLE VII CASES

 July 1, 2013

By Daniel P. Field

Editors’ Note: On June 24, 2013, the U.S. Supreme Court handed down decisions in two employment cases that significantly affect the scope of employment discrimination law, both of which are “friendly” to employers. In this eBlackboard, we review the Court’s interpretation of who is a supervisor for purposes of imputing liability to an employer in Title VII discrimination claims. In our next edition, we will review the stiffer legal standard the Court announced a plaintiff must meet in order to be successful in a retaliation claim under Title VII.

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin,” 42 U.S.C., §2000e-2(a)(1). While this provision obviously was intended to prohibit discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion and pay cuts, shortly after it was adopted lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment.   Most frequently seen are claims of a “hostile environment” in the workplace.

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. The burden of proof is on the employee to establish such negligence by a preponderance of the e vidence.  In cases where the harasser is a “supervisor” however, different rules apply.  If the supervisor’s harassment culminates in a tangible employment action, then the employer is strictly liable.  But if no tangible employment action is taken, the em ployer may escape liability by establishing, as an affirmative defense, upon which it bears the burden of proof, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided, e.g., by failing to avail itself of any anti-harassment policies that the employer had in place.

Prior to the decision of the Supreme Court of the United States in the case of Vance v. Ball State University, handed down on June 24, 2013, there was a split in the federal circuit courts of appeals concerning who was considered a supervisor.  Some circuits, including the Seventh, which hears cases arising in Illinois, held that a person was only a supervisor for purposes of Title VII if he or she was empowered by the employer to take tangible employment actions against the employee such as firing, demoting, transferring or disciplining the subordinate employee.  Other circuits had a looser definition and considered anyone that possessed the ability to exercise direction over another’s daily work was considered a supervisor.  The latter definition is the one favored by the United States Equal Employment Opportunity Commission, EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).

The Supreme Court granted certiorari in the Vance case to resolve the conflict in the circuits.  The Supreme Court has put that conflict to rest by holding that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take “tangible employment action against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  In doing so the Court noted that it was rejecting the “nebulous” definition of a supervisor advocated in the EEOC Guidance and adopted by several courts of appeals.

The Court noted that the framework of its precedents interpreting Title VII draws a sharp line between co-workers and supervisors.   Co-workers can inflict psychological injuries by creating a hostile work environment but cannot dock another‘s pay nor can one co-worker demote another.  Only a supervisor as defined in Vance has the power to cause direct economic harm by taking a tangible employment action.  Tangible employment decisions fall within the special province of the supervisor.  The supervisor has been empowered by the employer as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.

Under Title VII there are two frameworks where an employer may be vicariously liable for the acts of a supervisor’s harassment.  The first (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands.  The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken, such as creating a hostile environment or making threats to alter a subordinate’s terms or conditions of employment based on e.g., sex, race, color or religion but fails to carry out the threat.  It is the power to carry out such a threat that separates a supervisor from a co-worker in the law of Title VII.

Seventh Circuit Holds School District’s Graduation Ceremony at Local Church Violates First Amendment

September 14, 2012

By: Adam Dauksas

Recently, the United States Court of Appeals for the Seventh Circuit held that a Wisconsin public school district’s practice of hosting its high school graduation and senior honors ceremonies at a local Christian church violated the Establishment Clause of the First Amendment. Under the test espoused by the U.S. Supreme Court, if a district’s practice lacks a legitimate secular purpose, has the primary effect of endorsing or inhibiting religion, or fosters an excessive entanglement with religion, it will most certainly violate the Establishment Clause.

In Doe v. Elmbrook School District, the Court of Appeals found “[t]he atmosphere of the Church, both inside and outside the sanctuary [where the particular graduation ceremonies occurred], is indisputably and emphatically Christian.”  Prior to receiving their diplomas, students had to pass through the church’s lobby, which contained tables “filled with evangelical literature, much of which addresses children and teens.”  In addition, the lobby’s walls were adorned with Christian banners and posters, and church members even manned religious information booths during some of the ceremonies.

The graduation ceremonies, themselves, took place on the dais at the front end of the church’s sanctuary, over which rested a 15- to 20-foot tall Latin cross that was fixed to the wall. During the ceremonies, students sat in the front rows of the sanctuary’s pews, where Bibles, hymnal books and donation envelopes remained.

After stressing that each judicial determination of whether a particular governmental practice violates the Establishment Clause must be “case-specific,” the Seventh Circuit in Doe concluded “that conducting a public school graduation ceremony in a church – one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join ‘school ministries’ – runs afoul of the First Amendment’s Establishment Clause.”   In particular, the Court found that the district’s practice of hosting its graduation ceremonies in such a “proselytizing” environment had the effect of impermissibly endorsing religion, and was religiously coercive.

While the issues and facts presented in Doe are by no means prevalent among Illinois school districts, the case illustrates that a district can violate the First Amendment not only inside the classroom, but also outside of it as well by “summon[ing] students to an offsite location for important ceremonial events” where overt displays of religion are located.  However, other cases have established that churches and religious centers can be permissibly used by public schools for ceremonies, meetings, etc. If your district finds itself needing to borrow such facilities for any of its functions, we urge you to contact an attorney at the Firm to discuss the First Amendment concerns.

U.S. SUPREME COURT ALTERS AGE DISCRIMINATION ANALYSIS

June 26, 2009

The United States Supreme Court recently issued a decision, Gross v. FBL Financial Services, Inc., which clarifies the burden of proof in age discrimination suits brought under the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA generally protects employees 40 years of age or older from employment discrimination based upon age.

Prior to Gross, claims under the ADEA were treated in the same manner as other federal discrimination claims. For example, where an employee was of a protected status pursuant to Title VII of the Civil Rights Act of 1964 (e.g. race), and could demonstrate that the employer's treatment of the employee was motivated at least in part by an illegal discriminatory intent, the burden of proof shifted to the employer to demonstrate that it would have taken the same action regardless of the employee's protected status.

In the recent Supreme Court case, Gross v. FBL Financial Services, Inc., the Court held that the burden-shifting method described above does not apply to ADEA cases. In order to prove a discrimination claim under the ADEA, the employee must demonstrate that an employer took adverse action "because of" age, or that age was the "reason" the employer decided to act. The burden does not shift to the employer to prove that it would have taken the same action regardless of the employee's age. Therefore" the employee must show that age was the "but-for" cause of the employer's adverse decision.

This decision will make it more challenging for employees over the age of 40 to successfully prove ADEA claims, and lessens the burden on employers defending their actions. This change may become important if continued budgetary restraints result in the layoff of a significant number of tenured teachers. Even with the burden of proof placed on the employee, employers are well advised to carefully review adverse employment actions involving employees over the age of 40 to minimize the chance of a successful ADEA claim. The attorneys at Scariano, Himes and Petrarca, Chtd. are ready to assist you in any discrimination claims that arise at your district, and will be monitoring any further changes in the law in this area.