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.

 

ILLINOIS ADOPTS NEW PREGNANCY ACCOMMODATIONS LAW

 September 19, 2014

By Adam Dauksas

 Effective January 1,  2015,  Illinoisschooldistrictsmustbeginprovidingreasonableaccommodationsto 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.

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.