Title IX: Sex-Based Harassment and Bullying

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Title IX Sex-Based Harassment and Bullying

• September 30, 2014

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Roadmap for this presentation

• Prevalence of Sex-Based Harassment and Bullying
• How do WIOA Title IX Apply?
• What is Sex-Based Harassment and Bullying?
• A Recipients Basic Responsibilities
• Adopting Policies that Address Sex-Based
  Harassment and Bullying

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Prevalence of Sex-Based Harassment and Bullying
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Poll question

• Have you seen or heard of any incidents of
  sexual harassment, sexual violence, or bullying
  at Job Corps Centers, American job Centers, or
  other WIA Title I programs?
• A Yes
• B No

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Harassment bullying

• Among students aged 12-18 during 2011
• 28 were bullied at school
• 9 were cyberbullied
• 28 saw hate-related graffiti
• 9 were targets of hate-related words at school

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Sexual violence

• Nearly 20 of college women, and roughly 6 of
  college men, are victims of attempted or
  completed sexual assault.
• Over 4,800 sex offenses were reported on college
  campuses in 2012.
• More than 10 of high school women and 4 of high
  school men were physically forced to have sexual
  intercourse when they did not want to.
• During the 2009-2010 school year, there were 600
  incidents of rape or attempted rape and 3,600
  incidents of sexual battery other than rape
  recorded by public school districts.

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OCR enforcement since January 2009

• Nearly 2,000 OCR complaints involving sex-based
  harassment
• More than 250 OCR complaints involving sexual
  violence
• 25 proactive investigations involving sexual
  violence
• Key resolutions posted on OCRs website

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How Do Title IX WIOA Apply?
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Sec. 188 of the Workforce Innovation and
Opportunity Act of 2014

• No individual shall be excluded from
  participation in, denied the benefits of,
  subjected to discrimination under, or denied
  employment in the administration of or in
  connection with, any such program or activity
  because of race, color, religion, sex (except as
  otherwise permitted under title IX of the
  Education Amendments of 1972 (20 U.S.C. 1681 et
  seq.)), national origin, age, disability, or
  political affiliation or belief.

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Title IX of the Education Amendments of 1972

• 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 WIOA Title IX, covered entities are
  considered recipients of federal financial
  assistance and programs in the Workforce
  Development System

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Recipients programs covered

• WIOA Title IX apply to
• Programs and activities that are part of the
  One-Stop delivery system
• Partners listed in section 121(b) to the extent
  that the programs and activities are being
  conducted as part of the One-Stop delivery
  system and
• The employment practices of a recipient and/or
  One-Stop partner

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What is Sex-Based Harassment and Bullying?
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Bullying

• Bullying is unwanted, aggressive behavior that
  involves a real or perceived power imbalance. The
  behavior is repeated, or has the potential to be
  repeated, over time.
• Bullying includes actions such as making threats,
  spreading rumors, attacking someone physically or
  verbally, or purposefully excluding someone from
  a group

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Harassment

• Harassment is unwelcome verbal or physical
  conduct based on a protected class.

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Types of Sex-Based Harassment

• Sexual harassment unwelcome conduct of a sexual
  nature (including sexual violence)
• Sexual violence physical sexual acts perpetrated
  against a persons will or where a person is
  incapable of giving consent (e.g., rape or sexual
  assault)
• Gender-based harassment nonsexual, unwelcome
  conduct based on the students actual or
  perceived sex, including harassment based on
  gender identity, gender expression, and
  nonconformity with gender stereotypes

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Bullying vs. Harassment

• The label used to describe an incident (e.g.,
  bullying, hazing, teasing) does not determine how
  an organization is obligated to respond. Rather,
  the nature of the conduct itself must be assessed
  for civil rights implications.
• When the behavior implicates Title IX, persons
  charged with EO responsibilities should look
  beyond simply disciplining the perpetrators.

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Hostile environment

• Sex-based harassment creates a hostile
  environment when the conduct is sufficiently
  serious that it denies or limits an individuals
  ability to participate in or benefit from the
  services, activities, or opportunities offered by
  a recipient.
• Recipients are responsible for addressing
  incidents of harassment about which they know or
  reasonably should know.

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Hostile Environment Factors

• Context scope
• Nature (e.g., verbal or physical)
• Frequency duration
• Location of incidents
• Identity, number, and relationships of persons
  involved
• Generally, the more severe the conduct, the less
  need to show repeated incidents.

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Who can be a harasser?

• Individuals participating in WIA Title I programs
  and activities
• Job Corps students or individuals using American
  Job Center resources
• Employees of WIA program or activities
• AJC Staff, eligible training provider staff,
  administrators
• Third parties
• a visiting trainers, guest speakers, contractors

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Who can be harassed?

• Title IX protects all individuals participating
  in WIOA Title I programs and activities from sex
  discrimination
• male and female
• straight, gay, lesbian, bisexual and transgender
• individuals with and without disabilities
• individuals of different races and national
  origins

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A Recipients Basic Responsibilities
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Investigate

• When a recipient knows or reasonably should know
  of possible sex-based harassment, it must take
  immediate and appropriate steps to investigate or
  otherwise determine what occurred.

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Respond promptly and effectively

• If an investigation reveals that sex-based
  harassment created a hostile environment, the
  recipient must then take prompt and effective
  steps reasonably calculated to
• end the harassment,
• eliminate the hostile environment,
• prevent its recurrence, and
• remedy its effects, as appropriate.

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Remedies

• Appropriate responses will depend on the facts of
  each case they should always be tailored to
  redress the specific problems at the recipient.
• Effective remedial action may include
• disciplinary action against the perpetrator
• remedies for the complainant and others
• changes to the recipients overall services or
  policies

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Examples
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Examples

• Students in an American Job Center training
  course doctor a photo of a new student in a
  sexually suggestive position, post it online, and
  send it to other students via cell phones.
• An older male trainer repeatedly makes unwelcome
  aggressive sexual advances on a younger male
  student, makes explicit comments on his sexual
  attractiveness. The student initially complains,
  but later stops reporting or objecting to the
  comments.
• Peers make sexual jokes about a pregnant Job
  Corps student and call her sexually charged
  names.

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Examples

• A female Job Corps employee is spit on, mocked,
  and routinely called names, including anti-gay
  slurs, because she has short hair, a deep voice,
  and is perceived to be a lesbian.
• Male participants in a WIOA Title I program
  physically and sexually assault a transgender boy
  in the boys restroom. The victim tells the
  program administrator that he was "bullied for
  being trans."

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Examples

• A male American Job Center employee harasses a
  female using the centers resources. He refuses
  to refer her to any jobs because he thinks she
  will not be able to handle the work because she
  is a girl.
• Several students steal and deface a male
  student's equipment and supplies at an eligible
  training providers cosmetology program because
  they think men should not be cosmetologists.

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Adopting Policies that Address Sex-Based
Harassment and Bullying
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Proactive prevention strategies

• Adopt policies and procedures specifically
  addressing harassment.
• Publicize that recipient will not tolerate
  harassment and will respond to any reports of
  such conduct.
• Conduct a climate survey.
• Include information on harassment issues in
  orientation programs for program participants and
  employees.

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Training for employees

• A recipient needs to ensure that, with respect to
  sex-based harassment and bullying
• responsible employees know how to respond
  appropriately
• other responsible employees know that they are
  obligated to report incidents to appropriate
  officials and
• all other employees understand how to respond.

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Educate program participants

• Ensure WIOA Title I program participants
  understand their rights under Title IX and WIOA
• Include training in orientation programs
• Clearly identify (a) the offices or individuals
  with whom participants can speak confidentially
  and (b) responsible employees, such as the
  programs EO Officer.
• Provide information about ability to file EO
  complaint

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Additional resources

• Civil Rights Center Compliance Assistance
  Webpage http//www.dol.gov/oasam/programs/crc/ext
  ernal-compliance-assistance.htm
• OCR Reading Room www.ed.gov/ocr/publications.html
  
• QA on Title IX and Sexual Violence (2014)
  www.ed.gov/ocr/docs/qa-201404-title-ix.pdf
• Dear Colleague Letter Sexual Violence (2011)
  www.ed.gov/ocr/letters/colleague-201104.pdf
• Dear Colleague Letter Harassment and Bullying
  (2010) www.ed.gov/ocr/letters/colleague-201010.p
  df
• Dear Colleague Letter Sexual Harassment (2006)
  www.ed.gov/ocr/letters/sexhar-2006.html
• Sexual Harassment Guidance (2001)
  www.ed.gov/ocr/docs/shguide.html
• Notalone.gov

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Questions?
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Thank you!

• Joseph W. Wheeler
• Office for Civil Rights
• U.S. Department of Education
• joseph.wheeler_at_ed.gov
• www2.ed.gov/ocr
• Jessica K. Larkin
• Civil Rights Center
• U.S. Department of Labor
• Larkin.jessica.k_at_dol.gov
• http//www.dol.gov/oasam/programs/crc/

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This presentation provides general information
and does not represent a complete recitation of
the applicable law and OCR policy in this area.
It does not address specific issues of compliance
because determinations of compliance depend on
specific facts on a case-by-case basis.