DISCRIMINATION AND HARASSMENT: EMPLOYEES
The Albuquerque Public
Schools (APS) provides equal employment opportunities for all employees and
prohibits any form of discrimination/harassment in all facets of employment
including, but not limited to, recruitment, job advertisement, employment,
compensation, promotion, transfer, demotion, layoff, termination/discharge, or
selection for District-sponsored training programs. These prohibitions apply to all employees
(and students, as covered in a separate Directive) and to third parties not
directly subject to District-sponsored control.
Examples of third parties include audiences and competitors at
inter-district athletic competitions, service contractors, school visitors, and
employees of businesses or organizations participating in cooperative work or
school programs with the District.
Title VII of the Civil Right
Act of 1964, Title IX of the Educational
Amendments of 1972, the Age Discrimination in Employment Act, Section 504 of
the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the New Mexico Human Rights Act and APS Board
Policies prohibit discrimination.
Questions or concerns regarding any form of discrimination or harassment
based on disability, race, ethnicity, color, gender, sexual orientation,
national origin or ancestry, religion, age, veteran status or any other
protected category as defined by law should be directed to the Office of Equal
Opportunity Services.
A.
Definition and Examples of Harassment as Defined by
Law
Generally,
harassment is considered to have occurred when conduct:
1.
has the intent or
effect of creating an intimidating, hostile or offensive educational
environment, or
2.
has the intent or effect of substantially or unreasonably
interfering with an employee’s workplace opportunities.
Harassment
requires that hostile environment be created by the offending behavior. Both objective and subjective perspectives
are considered in relation to a particular type of conduct, including the
victim’s age, race, gender, disability, and/or other protected categories.
Individuals
or groups are in violation of District policy if they engage in the following
types of behavior (not an all-inclusive list) toward an individual on school
grounds, in the workplace, at school/work-sanctioned activities or in vehicles
owned/dispatched by the District:
1.
making demeaning
or derogatory remarks or comments directly to an individual or group because of
his/her/their disability, race, ethnicity, color, gender, sexual orientation,
national origin or ancestry, religion, age, veteran status or any other
protected status as defined by law,
2.
displaying
suggestive visual or written material of a sexual nature,
3.
defacing APS
property or materials by writing demeaning or derogatory words, letters, names
or the like directly or indirectly to an individual or group because of
his/her/their disability, race, ethnicity, color, gender, sexual orientation,
national origin or ancestry, religion, age, veteran status or any other
protected status as defined by law,
4.
staring or
glaring or showing obscene gestures or suggestive gestures (such as touching
your private parts in front of others),
5.
repeatedly asking
someone for a date when he/she is not interested, or
6.
damaging, defacing,
or destroying private property of any individual or group because of
his/her/their disability, race, ethnicity, color, gender, sexual orientation,
national origin or ancestry, religion, age, veteran status or any other
protected status as defined by law.
B.
Definition and Examples of Disability Harassment
Discriminatory
behavior toward an individual with a disability my be considered harassment
when that disability-focused behavior is sufficiently severe, pervasive or
persistent so as to interfere with or limit the ability of the individual to
participate in or benefit from the District’s programs or activities. Examples of possible disability harassment
are: excluding an individual from
activities because of appearance related to disability; severe, pervasive or
persistent name-calling based on disability or perceived disability; and
attempting to involve a student with a disability in antisocial, dangerous or
criminal activity when the student, because of disability, is unable to
comprehend fully or consent to the activity.
C.
Definition and Examples of Racial and National Origin
and Ancestry Harassment
Harassment
based on race or national origin may be oral, written, graphic or physical
conduct relating to an individual’s race, color, ethnicity or national origin
(including an individual’s ancestry, country of origin, or country of origin of
a student’s parents, family members, or ancestors that is sufficiently severe,
pervasive, or persistent that it interferes with or limits the ability of an
individual to participate in or benefit from the District’s programs or
activities. Harassment of an immigrant
or of someone who speaks another language or has a foreign accent may
constitute discrimination based on national origin or race or both, depending
on the circumstances. A racial or
national origin basis for acts of harassment may be evident from the explicit
statements of an individual or may be inferred from the surrounding
circumstances. Examples of possible race
or national origin harassment are:
physical acts of aggression or assault upon another or damage to
another’s property that is motivated by the individual’s race, color ethnicity
or national origin; depending on the circumstances and context, demeaning
racial jokes, taunting, racial slurs and derogatory racial “nicknames”
innuendos, or other negative or derogatory remarks of a racial nature or
relating to national origin; depending on the circumstances and context,
graffiti and/or slogans or visual displays such as cartoons or posters
depicting racial/ethnic slurs or racial/ethnically derogatory origin.
D.
Definition and Examples of Sexual Harassment
Sexual
harassment is a form of gender discrimination that generally is considered a
misuse of power. Sexual harassment
generally may fall under one of two categories:
quid pro quo and hostile environment. Quid pro quo sexual harassment generally
occurs when an individual explicitly or implicitly conditions an individual’s
participation in an activity or program or bases a decision on the individual’s
submission to unwelcome sexual advances, requests for sexual favors, or other
verbal, nonverbal or physical conduct of a sexual nature, whether or not the
individual submits to the conduct. This
generally involves a person in authority position over a subordinate.
Hostile environment harassment occurs when unwelcome sexual advances,
requests for sexual favors, and other verbal, nonverbal or physical conduct of
a sexual nature by a student, and employee or a third party are sufficiently severe,
persistent or pervasive so as to limit the individual’s ability to participate
in or benefit from a program or activity of the District or to create a hostile
or abusive educational or work environment.
Sexual
harassment includes conduct that is also criminal in nature such as rape,
sexual assault, stalking, and similar offenses.
Although sexual misconduct may also be considered sexual harassment,
criminal sexual behavior should be reported to the APS School Police
Department.
If
behavior toward another individual results in that individual feeling
intimidated, uncomfortable or threatened, that behavior may be considered
sexual harassment even if
the alleged harasser did not intend for his/her actions to be
offensive. This prohibition against sexual
harassment applies whether the harassment is between people of the same or
different gender.
Examples
of possible sexual harassment are:
unwelcome pressure for sexual activity; unwelcome, sexually motivated or
inappropriate physical contact; unwelcome verbal or written words or symbols
directed at an individual because of gender (whether that gender is the same as
the harasser or aimed at the opposite sex); and use of authority to coerce
sexual favors.
E.
Definition and Examples of Harassment Based on Sexual
Orientation
Targeting
a gay or lesbian individual for physical or sexual advances may constitute
sexual harassment. Calling individuals
“queer,” “gay boy or girl,” “fag,” “faggot,” “lezzie,”
or” lesbo” or gestures such as making a “limp wrist”
are also examples of behavior that may be considered harassment based on sexual
orientation.
F.
Definition and Examples of Harassment Based on
Religion
Targeting
an individual or individuals because of his/her/their religion or religious
beliefs may be a form of harassment.
Examples of possible harassment based on religion are: making derogatory jokes regarding a
particular religion and verbal, physical or written intimidation of an
individual because of his/her religion.
G.
Definition of Harassment Based on Age
Targeting
an individual or individuals because of his/her/their age may be a form of
harassment. Generally, the law prohibits
discrimination against and harassment of individuals over the age 40. Examples of harassment based on age might include
pervasive heckling of an individual by verbal negative references to age or
pervasive name-calling using terminology such as “grandpa” or “old fogey,” if this behavior creates a hostile environment for
the individual.
H. Complaint
Procedures
Any employee
who believes he/she has been subjected to discrimination and/or harassing
behavior by a student, teacher, administrator or other school personnel should
report the incident(s) immediately to an administrator or supervisor.
1.
Who may file a complaint
APS
encourages employees to report incident(s) of discrimination/harassment and
resolve their complaints at the lowest level.
If further assistance is needed, contact the appropriate administrator. Assistance may also be sought and a complaint
filed with the Office of Equal Opportunity Services.
2.
How to file a complaint
Complaints
may be filed with the Office of Equal Opportunity Services and must be
submitted in writing. A complaint form
must be completed within 180 days from the date of alleged discrimination,
unless the time for filing is extended by the Office of Equal Opportunity
Services for good cause (to be determined by the OEOS). All inquiries and discrimination complaints
filed with the OEOS are CONFIDENTIAL.
Confidentiality also applies to the investigations conducted by the
OEOS.
3.
Where to file a complaint
APS Office of Equal Opportunity Services
725 University
Blvd SE
Albuquerque, NM 87106
Phone number:
(505) 842-3547
The
Office of Equal Opportunity Services informs the Superintendent of the
determination of the investigation indicating that there was (1) sufficient
evidence to determine there was a violation of District policies and procedures
and/or sufficient evidence to support a finding that there was a violation of
District policies and procedures and/or insufficient evidence to support the
allegations made.
The
complainant (individual filing the complaint) and respondent (individual
responding to the complaint) have the right to appeal the Office of Equal
Opportunity Services’ determination. If
the complainant or respondent is not in agreement with the Office of Equal
Opportunity Services’ determination, he/she will have (10) working days from
the date of the determination to submit an appeal in writing to the
Superintendent. The Superintendent will
inform the complainant/respondent of the appeal decision in writing.
After
the Superintendent’s review, the internal complaint process has concluded. The time lines set forth in this policy may
be waived or extended by the Superintendent.
The
complainant and respondent may also voluntarily choose to participate in
mediation to resolve the dispute. The
mediation program minimizes the need for a lengthy investigation and helps to
resolve disputes in a faster time frame.
Specific mediation information and guidelines may be requested through
the Office of Equal Opportunity Services.
Any
employee who violates this policy by engaging in conduct defined throughout the
policy that directly or indirectly causes intimidation, harassment, or physical
harm to another individual will be subject to disciplinary action as specified
in the Employee Handbook.
No
individual will suffer retaliation or intimidation for participating in the
internal complaint process. Retaliation
means some type of adversarial or punitive action taken against an individual
or individuals as a result of filing a complaint or participating in the complaint
process. Retaliation against any individual
seeking assistance at his/her work site, filing a complaint, or participation
in the investigation process is grounds for a subsequent retaliation/harassment
complaint.
APS
will respect the privacy of the complainant, the individual(s) against whom the
complaint is filed and witnesses as much as possible, consistent with our legal
obligations to investigate, take appropriate action, and conform to any legal
discovery or disclosure obligations.
I. Legal
Compliance
The
Office of Equal Opportunity Services has the responsibility to monitor the
compliance of District policies and procedures, which follow requirements under
State and Federal Laws, and Regulations related to discrimination and
harassment. The Coordinator for Title VI
& VII of the Civil Rights Act, Title IX of the Education Amendments, Age
Discrimination Act, Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act is the Director of the Office of Equal Opportunity
Services.
Cross Reference:
Board Policy A.03 and G.01
Cross Reference:
Procedural Directives: Section
504/ADA: Physical Access for Students,
Parents and Employees with Disabilities
Section 504/ADA Compliance: Students
Disability Harassment: Students
Discrimination and Harassment: Students
Discrimination and Harassment: Employees
Revised: January
2005