Discrimination and Harassment: Employees

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, HIV status, pregnancy, or any other protected class 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:

has the intent or effect of creating an intimidating, hostile or offensive educational environment, or
has the intent or effect of substantially or unreasonably interfering with an employee’s workplace opportunities

Harassment is offending behavior that creates a hostile environment. 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 class as defined by law. .

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:

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
displaying suggestive visual or written material of a sexual nature
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
staring or glaring or showing obscene gestures or suggestive gestures (such as touching your private parts in front of others)
repeatedly asking someone for a date when he/she is not interested
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 may 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 threats or actions such as tampering with an employee’s equipment or workspace and physical intimidation.

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 Gender Discrimination and Sexual Harassment (Title IX)

Discrimination may occur when an individual or individuals are treated differently specifically because of his/her/their gender, sexual orientation or pregnancy. Additionally, unintended behavior or action that ultimately results in treating a group differently because of their gender, sexual orientation or pregnancy may be a form of gender discrimination.

Sexual harassment/bullying is a form of gender discrimination that generally is considered a misuse of power. 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.

Sexual harassment generally may fall under one of three categories: quid pro quo, hostile environment, and retaliatory harassment.

Sexual violence is a broad term and includes conduct that is also criminal in nature such as rape, sexual assault, stalking, child sexual abuse, sexual exploitation, human trafficking, unwanted sexual contact, sexual harassment, exposure and similar offenses. Although sexual violence may also be considered sexual harassment, criminal sexual violence against employees within the district’s jurisdiction needs to be reported to the APS School Police Department and the district’s Title IX director in the Office of Equal Opportunity Services (OEOS).

If needed, please review the complete district procedural directive for Gender Discrimination and Sexual Harassment for Employees (Title IX).

Please review the complete procedural directive for Gender Discrimination and Sexual Harassment (Title IX): Employees.

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/their 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.

TRAINING

Albuquerque Public Schools is committed to effectively train its APS personnel to create and maintain a safe, civil, respectful and inclusive school and work community.

REPORTING AND COMPLAINT PROCEDURES

The following procedures apply to discrimination and harassment complaints by student(s), parent(s), legal guardian(s) employee(s), or third parties. Examples of third parties include audiences and competitors at inter-district athletic competitions, service contractors, school visitors and employees and businesses or organizations participating in cooperative work or school programs with the district in relation to the incident(s) at issue.

These procedures shall be available in every school site, administrative office, posted on the district website and included in the employee handbook. Furthermore, a more detailed in scope reporting and complaint procedure process can be found in the Office of Equal Opportunity Manual.

Who may file a complaint

Any employee who believes he/she/they has been subjected to alleged discrimination and/or harassment by a student, teacher, administrator or other school personnel or third parties should report the incident(s) immediately to their supervisor or an administrator with supervisory/administrative authority. They may also directly report to the Office of Equal Opportunity Services or any civil rights entity such as the New Mexico Human Rights Division or the Equal Employee Opportunity Commission.

Any APS employee, who becomes aware of an alleged discrimination and/or harassment incident, whether by witnessing the incident or being told of it, must report it to their immediate supervisor or to the Office of Equal Opportunity Services.

How to file a complaint

Supervisors and administrators who have received a complaint from an employee(s) must report the alleged allegation(s) to the Office of Equal Opportunity Services.

An employee may contact the Office of Equal Opportunity Services directly.

When the district becomes aware of the existence of an alleged discrimination and/or harassment, it is obligated by law to take prompt and appropriate action, whether or not the victim wants the district to proceed or not.

For allegations that may rise to the level of sexual violence, parties may choose and/or be directed by the Office of Equal Opportunity Services to also file a police report. Individuals who file police reports should also report to the Office of Equal Opportunity Services.

Types of Complaints

Informal complaint resolution process

Informal resolution may be an appropriate choice when the conduct involved is not a serious or repetitive nature and disciplinary action is not required to remedy the situation. The determination is made by an administrator or designee. The informal resolution process can be ended by a complainant at any time to begin a formal complaint process. The administrator or designee shall document any informal resolution, and a copy of such documentation shall be forwarded within three (3) business days of resolution to the Office of Equal Opportunity Services, and when appropriate, the Chief of Human Resources & Legal Services.

Formal complaint resolution process

Initiation of the formal complaint procedures requires a written complaint. The complaint form can be accessed from the Office of Equal Opportunity Services’ webpage. Hard copy forms are available in the Office of Equal Opportunity Services. Individuals can also request a school or department to provide a hard copy form.

Formal complaints must be submitted in writing to the Office of Equal Opportunity Services within 180 days from the date of alleged act(s), in accordance with timelines set forth by the Office of Civil Rights, unless the time for filing is extended by the Office of Equal Opportunity Services for good cause (to be determined by the OEOS). Failure of a complaint to comply with any time limitation in the complaint procedure may result in dismissal of the complaint and/or denial of the appeal. Dismissal shall not preclude the individual’s right to pursue the complaint through other appropriate external agencies.

The Office of Equal Opportunity Services shall review the formal complaint to determine whether the matter falls within the scope of these procedures. Within then (10) business days after the complaint submission date, the Office of Equal Opportunity Services shall initiate an investigation of the matters alleged, or inform the complainant in writing that the matters alleged in the complaint are not within the jurisdiction or authority of the district to investigate and that the district will not carry out any further investigations. If the matter does not involve allegations of discrimination within the scope of these procedures, the Office of Equal Opportunity Services shall forward the matter to the proper district administrative authority for review, if appropriate.

During either the informal or formal complaint processes interim measures, such as schedule changes, placing employees on leave and/or counseling support may be implemented to protect employees in the work setting, pending the outcome of the process.

Investigation

The Office of Equal Opportunity Services shall oversee that an adequate, reliable and impartial investigation of the complaint is conducted by an investigator at the work site and/or where the alleged discrimination occurred.

In conducting the investigation, the investigator shall interview all parties identified in the complaint and other witnesses that the investigator determines may provide information relevant to resolving the complaint allegation(s). Both the complainant and the respondent shall have the opportunity to identify witnesses to be interviewed and provide documentation or other evidence for the investigator to review.

The investigator shall consider the evidence compiled and take whatever additional actions necessary to complete the investigation.

The complainant and/or respondent will be informed of the status of the investigation at regular intervals. However, at any given time during the on-going investigation process, the complainant and/or respondent may request a status update on the current complaint. This may be requested in writing directly to the Office of Equal Opportunity Services.

Notice of Resolution

The Office of Equal Opportunity Services shall notify both the complainant and respondent in writing within forty-five 45) business days from the complaint submission date of the results of the investigation. In some cases, the investigation may take longer. However, the Office of Equal Opportunity Services and investigator will make every reasonable effort to ensure that the investigation is completed within the appropriate timeline. The Office of Equal Opportunity Services shall oversee this process.

Appeal Rights

A party not satisfied with the resolution may submit a written appeal within ten (10) business days to the superintendent. Ten business days shall be deemed effective on the person served as the date of delivery, if personally served, faxed or email, or effective three calendar days of deposit by first-class mail if delivered by mail. This written appeal shall state with particularity the nature of the disagreement, the reasons underlying such disagreement and how the outcome would be changed by reconsideration of the determination.

The superintendent or designee shall conduct a review of the record to determine whether the preponderance of the evidence supports the determination. The superintendent or designee shall issue a written decision and mail it to the parties within fifteen (15) business days of the receipt of the appeal. The superintendent’s decision is a final decision.

Complaints to an External Agency

If a party is not satisfied at any time, including with the superintendent’s decision, the party may file a complaint with the Office of Civil Rights (“OCR”) in Denver, Colorado. More information is available at the Office of Civil Rights, Federal Office, 1244 Speer Blvd, Suite 310, Denver, CO 80204-3582, (303) 844-5695. Individuals may also file complaints with any other civil rights entities such as the New Mexico Human Rights Division or Equal Employment Opportunity Commission.

Disciplinary Consequences

Any individual who violates this policy by engaging in conduct defined throughout this policy that directly or indirectly causes intimidation, harassment or physical harm to another student or employee will be subject to disciplinary action.

False Complaints

Any individual who knowingly files a false or misleading complaint alleging harassment, discrimination or retaliation is subject to appropriate disciplinary action, including, but not limited to, dismissal of the complaint.

Retaliation

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. An individual or individuals who make complaints in good faith shall be free from retaliation, coercion and reprisal in seeking resolution of their complaint. Furthermore, persons acting as witnesses to a complaint, in good faith, shall be free from reprisal. Retaliation against an individual seeking assistance at his/her/their 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 the legal obligations to investigate, take appropriate action, and conform to any legal discovery or disclosure obligations. Any information gathered during an informal procedure may be used during a formal procedure, if initiated. While there can be no assurances of complete confidentiality, complaints under this procedure will be treated as sensitive information not to be shared with others except in limited circumstances. Decisions regarding confidentiality will be made by the Office of Equal Opportunity Services.

Legal Compliance

The Office of Equal Opportunity Services has the responsibility to monitor the compliance of state and federal laws and regulations, as well as, district policies and procedures, which follow requirements under state and federal laws, and regulations related to discrimination and harassment.

For discrimination and harassment claims contact:
Office of Equal Opportunity Services
Albuquerque Public Schools, 6400 Uptown Blvd, NE
Albuquerque, NM 87110
https://www.aps.edu/equal-opportunity-services

Administrative Position:

Associate Superintendent of Equity, Instruction, Innovation and Support
Chief Operations Officer
Chief of Human Resources & Legal Services

Department Director:

Director of Title IX Programs
Director of Equal Opportunity Services
Executive Director of Student, Parent and Employee Service Center

Cross References:

Legal Reference:

Title VI and Title VII of Civil Rights Act of 1964
Age Discrimination in Employment Act
Section 504 of the Rehabilitation Act of 1973
Americans with Disabilities Act
Title IX of the Education Amendments of 1972
The Family Educational Rights and Privacy Act
New Mexico Human Rights Act (NMSA § 28-1-7)
6.10.3 NMAC
Children's Code Article 4: Child Abuse and Neglect, 32A-4-1 through 32A-4-34

Board Policy Cross Ref:

AC Nondiscrimination

Procedural Directive Cross Ref:

Forms:
Discrimination and/or Harassment Complaint Form (Office of Equal Opportunity Manual)

Revised: January 2005
Reviewed: December 11, 2019
Revised: January 17, 2020