Legal Issues in Education Settings: Anti-Sexual Harassment, Discrimination, and More

Legal Issues in the Education Setting Presented By: Chaim B. Book cbook@mb-llp.com 212-221-7999

Topics Anti-Sexual Harassment Training Releases/Waivers Avoiding Discrimination Lawsuits Conflicts of Interest Tuition Contracts and Related Issues Employee Medical and Sick Leave

Purpose of having a written Anti-Sexual Harassment policy a. Why? In general, important to have written policies for consistency and compliance with the law. b. Prevent people from saying, oh, I didn t know what to do, who to go to, what the process is. c. Tells employees what to do. d. Can sometimes be a defense in a lawsuit.

Anti-Sexual Harassment What is sexual harassment? Quid Pro Quo Hostile work environment Definitions? Quid Pro Quo -Unwelcome sexual advances, request to engage in sexual conduct, requests for sexual favors or for unwanted contact and other physical or expressive (verbal or nonverbal) behavior 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 the individual

Anti-Sexual Harassment (continued) Definitions? Hostile Work Environment -verbal or physical conduct of a sexual nature which is sufficiently severe, persistent or pervasive, to have the purpose or effect of substantially or unreasonably interfering with an individual s professional work performance, or creating an intimidating, hostile, offensive, abusive or demeaning employment environment.

Anti-Sexual Harassment (continued) Sexual harassment: May be verbal, nonverbal, visual or physical. May include sexual propositions, innuendo, suggestive comments, sexually oriented jokes or teasing, or unwelcome physical contact such as patting, pinching, or brushing against another. Both victim and harasser can be a man or a woman Harasser can be a co-worker, supervisor, parent, volunteer, Board member

Anti-Sexual Harassment Laws prohibiting sexual harassment Federal laws Title VII: prohibits harassment in the workplace Title IX: prohibits harassment in the educational setting State and local laws Many states and municipalities have anti-discrimination laws, some of which are more expansive than federal law

Sexual harassment prevention Draft an anti-harassment policy Provide anti-sexual harassment training Mandatory in New York State and must be interactive Mandatory in Connecticut and California We expect other states and localities to follow Have a Meaningful Investigation Process

Important to have appropriate people investigating complaints Executive Director or direct supervisor or outside person Important to encourage employees to report issues. Important to encourage employees not only to report their own issues but even if they observe something, they should report it. Important to take action against harasser (doesn t mean must be fired) and against false reporter

Importance of conducting an investigation a. Should be thorough. b. Should be documented. c. Should interview the complainant. Ask if there were any witnesses. d. Should interview the alleged harasser and any witnesses. e. Should inform the complainant about what you will do/have done and should give him/her a time frame in which the investigation will be concluded. f. Should assure complainant that retaliation will not be tolerated.

Releases and Waivers Often used for sports, field trips, and other activities Many states do not enforce waivers signed by parents of minors, and minors cannot themselves enter into a legally binding contract For example, in NY, waivers of liability for minors are generally unenforceable. Neither the minor nor his or her parent can sign away these rights and schools can be held liable for their gross negligence or otherwise disregarding what a reasonable person would deem a foreseeably dangerous situation

Releases and Waivers (continued) But Florida does allow a parent to sign a waiver for minor children in a school context, not in a commercial context. They are typically only effective against liability for negligence, but not for gross negligence (i.e. where the school knew or should have known that the activity would cause injury or harm), recklessness, or intentional conduct

Releases and Waivers (continued) Properly drafted waivers Make it clear and unambiguous and in larger type. Have separate releases for separate activities. Don t lump together in one document. Do not bury it in a lengthier document. Warn of all possible injuries/risks of the activity, including both known and unknown risks. Insurance Coverage For the School For vendors/venues

Avoiding Discrimination Lawsuits Types of discrimination Age, Gender, Race, National Origin, Sexual Orientation, Disability, Religion Religious Organization Exemption -Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability.

Avoiding Discrimination Lawsuits (continued) Ministerial Exemption -Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. Exception applies only to employees who perform essentially religious functions.

Avoiding Discrimination Lawsuits Steps for employers Refrain from policies which create unjustified gender distinctions. Pay differential is a serious issue. Be very careful with respect to age discrimination. Don t use phrases like dead wood, fresh blood, young ideas. Be careful to have a balance between young and old.

Avoiding Discrimination Lawsuits Steps for employers No tolerance of students using racial slurs or demeaning conduct toward minorities. Establish procedures for responding to requests for disability accommodations. Treat all employees in a respectful manner.

Conflicts of Interest Recommended policy items not legal requirements but sensible policies Limitations on tutoring students Teachers should not accept outside employment with students/families of students in his or her class

Conflicts of Interest (continued) Recommended policy items not legal requirements but sensible policies Policy regarding outside employment Outside employment should not conflict with the interests of the school Outside employment should not use the school s property or resources (such as school time, lesson plans, etc.) Limitations on outside fundraising

Tuition Contracts Properly drafted tuition agreement will be a contract binding on all parties Collecting unpaid tuition You may sue or bring a din Torah for breach of the agreement May want to designate an arbitrator Divorced parents You can pursue whichever party signed the tuition agreement (could be both) their divorce agreement spells out obligations to each other, not to you

Tuition Contracts (continued) Withholding transcripts/records is okay if the agreement states that these will be withheld in the event of nonpayment Keep in mind that not all states permit this Consult with a lawyer for assistance drafting tuition agreements and for collecting unpaid tuition

Employee Medical and Sick Leave Federal Family and Medical Leave Act Schools of all sizes are technically covered but employees only eligible for leave if the employer has at least 50 employees within 75 miles Requires up to 12 weeks of unpaid family and medical leave School breaks do not count employers can only count leave time as FMLA when the employee would otherwise be working There may be limits on a teacher s ability to take intermittent leave or to take leave near the end of an academic term

Employee Medical and Sick Leave (continued) Federal Family and Medical Leave Act Qualifying leave reasons Employee s serious illness Serious illness of an employee s spouse, child, or parent Birth of a child or placement of child for adoption or foster care Exigency arising out of active military duty of the employee s spouse, child, or parent

Employee Medical and Sick Leave State Family Leave Laws Some states (New York, California, New Jersey, Rhode Island) have paid family leave laws More states may follow suit

Employee Medical and Sick Leave Example: NYS Paid Family Leave Currently permits up to 8 weeks (increasing to 12 by 2021) of paid family leave for the birth, adoption, or placement in foster care of a child; to care for a family member with a serious illness; and to prepare for a family member s military deployment Benefit amount is up to 50% (this year but going up) of the employee s weekly pay, up to a cap set by the law Different from FMLA in two ways Employee s own illness not covered Leave is paid

Employee Medical and Sick Leave Sick Leave There is no federal requirement to provide sick leave Some states and localities require paid or unpaid sick leave 5 days is the typical requirement Laws also often allow sick leave to supplement income during FMLA or other family leave

Employee Medical and Sick Leave Sick Leave Some states and localities require paid or unpaid sick leave Most laws require that employees be allowed to use the sick leave for: Illness of the employee Illness of the employee s family member Medical services, relocation, or seeking other services related to domestic abuse or sexual assault Sometimes closure of a child s school or the need to attend a conference at a child s school is also covered (NJ, as an example)

Additional Questions/Concerns Texting/Chat Communicating with other faculty Communicating with parents Communicating with students should be prohibited Security concerns Audio/video in classrooms Other questions?