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Gender Discrimination and Sexual Harassment (Title IX): Employees

INTRODUCTION

Title IX of the Educational Amendments Acts of 1972 is a federal law that states, “No person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 

DISCRIMINATION AND HARASSMENT BASED ON GENDER, SEXUAL ORIENTATION OR PREGNANCY (TITLE IX)

Discrimination and harassing behavior based on gender, sexual orientation or pregnancy violate federal and/or state civil rights law and deny equal employment opportunities for all employees.  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.  Other prohibited behaviors can include: making comments, name-calling, physical conduct or other expressive behavior directed at an individual or group on the basis of gender, sexual orientation or pregnancy.  Discriminatory and harassing behavior creates a demeaning, intimidating and hostile work environment.  Title IX includes sexual harassment, sexual misconduct and sexual violence.

Discrimination/Harassment is considered to have occurred when such conduct:

  • has the purpose or effect of creating an intimidating, hostile or offensive work environment,
  • has the purpose or effect of substantially or unreasonable interfering with an employee’s performance,
  • otherwise adversely affects an individual’s employment  opportunities.

Individuals or groups may be in violation of this policy if they engage in the following behavior (not all inclusive) toward other district personnel or any other individual on district grounds, at district-sanctioned activities or in vehicles dispatched by the district:

  • making demeaning remarks directly or indirectly to an individual or group based upon his/her/their gender, sexual orientation or pregnancy,
  • displaying suggestive visual or written material or defacing APS property or materials to demean an individual or group based upon gender, sexual orientation or pregnancy, staring, glaring, obscene gestures, suggestive gestures (touching your private intimate parts in front of others), repeatedly asking someone out when he/she/they are not interested, or damaging, defacing or destroying private property.

SEXUAL HARASSMENT

Sexual harassment is a form of gender discrimination as defined in Title IX of the Education Amendments of 1972 as well as Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act.  Sexual harassment is a violation of federal and state law as well as district policy.  Sexual harassment/bullying is a form of gender-based harassment that 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.

If behavior toward another employee(s) makes him/her/they feel intimidated, uncomfortable or threatened, it may be considered sexual harassment even if the harasser did not intend for his/her/their actions to be offensive.  This prohibition against sexual harassment applies whether the harassment is between people of the same or different gender.

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

Quid pro quo sexual harassment generally occurs when an individual explicitly or implicitly conditions another individual’s participation in an activity or program or based 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, but not always, involves a person in an authority position over a subordinate.

Hostile environment harassment generally occurs when unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature by a student, 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 work environment.

Retaliatory harassment is when any adverse employment action is taken against a person because of the person’s participation in a complaint or investigation of discrimination or sexual misconduct.  This may include retaliation against a reporting party by the responding party or responding party’s friends and/or co-workers.  It may also include retaliation directed toward a third party because of that party’s participation in a grievance process or for supporting a grievance. 

Sexual harassment may also be considered a criminal offense under state and local assault and child abuse laws.

SEXUAL VIOLENCE

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).

The initiation of a criminal complaint does not mitigate the district’s obligation to complete a prompt and equitable resolution of every complaint alleging sex discrimination.

TRAINING

Albuquerque Public Schools is committed to effectively train its APS personnel for whom implement the Title IX procedures, to take appropriate action to eliminate sexual harassment, sexual violence, prevent its recurrence and to address and correct its discriminatory effects as promptly and thoroughly as possible.

REPORTING AND COMPLAINT PROCEDURES FOR TITLE IX

The following procedures apply to Title IX 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 for Title IX 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 an alleged Title IX 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, Title IX or any civil rights entities such as the New Mexico Human Rights Division or Equal Employment Opportunity Commission.

Any APS employee, who becomes aware of an alleged Title IX 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, Title IX. 

How to file a complaint

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

An employee may contact the Office of Equal Opportunity Services, Title IX directly. Individuals who file a police report should also report to the Office of Equal Opportunity Services.

When the district becomes aware of the existence of an alleged Title IX harassment or discrimination, 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, Title IX to also file a police report.

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, Title IX director, 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 OEOS department.  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, Title IX, 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 Title IX director shall review the formal complaint to determine whether the matter falls within the scope of these procedures.  Within ten (10) business days after the complaint submission date, the Title IX director 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 Title IX director 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 Title IX director 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 Title IX director. 

Notice of Resolution

The Title IX director 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 Title IX director and investigator will make every reasonable effort to ensure that the investigation is completed within the appropriate timeline.  The Title IX director 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 the 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 individuals 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 the witnesses as much as possible, consistent with legal obligations to investigate, take appropriate action, and conform to any legal discovery or disclosure under employee law and Title IX. 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 Title IX director.

Legal Compliance

The Title IX director, via 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 related to harassment and discrimination issues.

For Title IX claims contact:

Title IX Director
Office of Equal Opportunity Services
Albuquerque Public Schools, 6400 Uptown Blvd, NE
Albuquerque, NM  87110
https://www.aps.edu/equal-opportunity-services

Administrative Position:                 

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

Department Director:                    

  • Senior Director, Office of Equity and Engagement
  • Director of Title IX Programs
  • Director of Equal Opportunity Services
  • Executive Director of Student, Parent and Employee Service Center

References:

Legal Reference:

  • Civil Rights Act of 1964
  • 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:

Procedural Directive Cross Ref: 

Forms:

  • Title IX Sexual Discrimination and/or Harassment Complaint Form and Procedures (Office of Equal Opportunity Manual)

 NSBA/NEPN Classification: JBA

Introduced: December 11, 2019
Adopted: January 17, 2020