Discrimination and Harassment: Employees - January 2005 Revision

This procedural directive was reviewed, revised, and renamed in January 2020. We provide this revision for historic purposes only.

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.

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.

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.

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.

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.

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.

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.

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.

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

Appeal Process

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.

Mediation

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.

Disciplinary Consequences

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.

Retaliation

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.

Confidentiality

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.

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
• Board Policy G.01

Cross Reference:

• Section 504/ADA: Physical Access for Students, Parents, and Employees with Disabilities
• Disability Harassment: Students
• Discrimination and Harassment: Students
• Discrimination and Harassment: Employees

Revised: January 2005

This page was last updated on: December 9, 2009.