Avoid the Price of Silence- Investigating and Addressing Bullying In the School Environment

1. Avoid the Price of Silence-Investigating and Addressing Bullying In the School Environment July 20, 2014 Christa R. Cook, Esq. MASLA 37th Annual Summer Conference .

2. Bullying is in the News Tyler Clementi: Gay Rutgers University freshman who committed suicide his after roommate streamed live video of a sexual encounter between Tyler and another man Jayme Rodemeyer: 14 yr old student from Williamsville, NY. Struggled with his sexuality. Called “Faggot, fag” by other students in the hallways. Committed suicide.

3. Bullying is in the News

4. Bullying is in the News

5. Dignity for All Students Act • NO student shall be subjected to bullying, harassment or discrimination by employees or students on school property or at a school function (including on the bus) based on, but not limited to the enumerated protected categories.

6. No discrimination/bullying based on these protected categories Actual or Perceived: Race Sex Color Gender Weight Sexual Orientation National Origin Disability Ethnic Group Religious Practice Religion • DASA does not only cover the 11 protected categories. It also covers other forms of discrimination, such as: Socioeconomic status Height Accent Speech style Appearance

7. Bullying Statistics • It is estimated that 160,000 children miss school every day due to fear of attack or intimidation by other students. • Source: National Education Association • 282,000 students are physically attacked in secondary schools each month • 15% of all school absenteeism is directly related to fears of being bullied at school • Harassment and bullying have been linked to 75% of school-shooting incidents. • http://www.makebeatsnotbeatsdown.org/facts.new/html

8. Staff-Student Bullying • Staff can be guilty of bullying or harassment • Offensive comments • Name-calling (beware of nicknames) • Inappropriate jokes • Talking about a student behind his/her back to other students • Excessive or unequal discipline

9. Protecting Students from Bullying and Harassment • What is harassment? • Severe and/or pervasive offensive behavior based on a student’s protected characteristic(s) (i.e., race, color, religion, age, gender, sexual orientation, disability, or national origin) • What is bullying? • Much broader than harassment. Intimidation, humiliation or other abuse, generally resulting from one student’s physical or social power (or perceived power) over another • What is cyber bullying? • Cyber bullying is defined as any harassment or bullying that occurs through any form of electronic communication, such as email, social media sites, text messaging, blogs, etc.

10. Reporting Obligations • DASA requires schools to maintain a policy that requires those who witness or receive a report of harassment or bullying to notify the principal, superintendent or superintendent’s designee and to provide a written report of the incident • Serious incidents or recurring incidents should be reported to the building principal or DASA coordinator. • Employees who report incidents of harassment or bullying are protected from any retaliation • Annual school report to the State Education Department regarding material incidents due this summer for the 2013/14 school year • Cyber bullying is a separate reporting category for the 2013/14 year

11. Reporting Obligations – Potential Changes on the Horizon? • Governor Cuomo proposed amendments to the law during his State of the State address which would impose penalties on teachers and administrators if they failed to report a pattern of discrimination or harassment to the State Education Department, the Division of Human Rights, and the State Police. • Loss of teaching/administrator’s certification • Proposal not supported by either house of the legislature • Concern the amendment is vague and overly punitive • Why the proposed report to the Division of Human Rights? • Cuomo also proposed amendments to the Human Rights Law to provide jurisdiction over all school district cases • In June 2012, NY Court of Appeals held that SDHR does not have jurisdiction over harassment and bullying complaints brought by students

12. School District Liability for Harassment of Students • A school district’s legal obligations for responding to harassment and bullying is triggered not only by DASA, but under various federal and state civil rights laws which create an obligation to protect students from harassment on the basis of race, color, sex, national origin and disability. • Federal Civil Rights in Education Laws • Title VI, Title IX, Section 504, Title II of the ADA • Dear Colleague Letter from US Department of Education, OCR October 26, 2010

13. Bullying of Students with Disabilities • Harassment under Section 504/ADA • Failure to make reasonable accommodations to address bullying • OSERS’ Dear Colleague Letter (August 20, 2013) • Bullying disproportionately affects students with disabilities • School districts’ responsibilities to provide a FAPE in accordance with student’s IEP pursuant to the Individuals with Disabilities Education Act (IDEA) • Obligation to remedy bullying (whether related to a student’s disability or not) which may result in denial of student’s FAPE

14. School District Liability for Harassment of Students • The District will be liable for harassment or bullying of students if: • The harassment or bullying actually took place; • The District had actual knowledge of the harassment or bullying; and • The District was deliberately indifferent to the harassment or bullying • Knowledge of District employees is the District’s knowledge and, therefore, employees’ inaction can result in liability for the District

15. School District Liability for Harassment of Students • This “deliberate indifference” standard was outlined by the Supreme Court in Davis v. Monroe County Bd of Educ. • Liability only arises if a plaintiff establishes: • Substantial control, • Severe and discriminatory harassment, • Actual knowledge, and • Deliberate indifference • Was the District’s response “clearly unreasonable in light of the known circumstances”? • If remedial responses are ineffective, continued use of those same methods likely constitutes deliberate indifference

16. Noteworthy Cases J.G.S. v. Bellmore-Merrick Central High School (Nassau County Supreme Court 2014) • Two District students allegedly circulated a video depicting a young female engaged in a lewd act and falsely represented to several other students in the school that the female in the video was the minor plaintiff. The minor plaintiff had previously attended the school, but attended a nearby private school at the time of the circulation of the video. • Court implicitly held that DASA provides for a private right of action against school districts • Held that public school district may be liable for alleged bullying of private school student

17. Noteworthy Cases K.F. v. Monroe Woodbury Central School District (2d Cir 2013) • The Second Circuit affirmed the district court’s dismissal of the case and noted that it was factually distinguishable from the Zeno case in which a jury issued a $1 million verdict against a school district. • A ninth-grader who suffered intense and prolonged teasing, taunting, and even sexual assaults by her classmates revealed the conduct to an outside counselor. After learning of the harassment and bullying, the school recommended an out-of-district program (which was refused) and then provided the student with individual at-home tutoring • Court held that the school acted promptly and no further acts of harassment or bullying occurred. • The Second Circuit noted, however, that it did not endorse or ratify the school district’s response to the student’s situation.

18. Noteworthy Cases Estate of Montana Lance v. Lewisville Independent School District (5th Cir. 2014) • A fourth grader, Montana Lance, hung himself in the nurses’ office at school. His parents claimed that ongoing bullying caused him to do it. The student had been receiving special education services in accordance with his IEP. • The Fifth Circuit Court of Appeals dismissed the parents’ claims that had been brought under Section 504 of the Rehabilitation Act, the ADA, as well as constitutional claims • The Court noted that the school district had investigated each incident of alleged harassment and disciplined the students involved. The Court also noted that the school district had implemented anti-bullying policies and had maintained detailed documentation regarding the steps it took to address incidents of bullying, as well as training it provided to school district staff. • The Section 504 claim was found to be without merit because the parents had not alleged that the IEP was inconsistent with the requirements of the IDEA – an essential element to a claim that the school failed to provide a free appropriate public education.

19. Noteworthy Cases People v. Marquan M. (NY Court of Appeals July 1, 2014) • NY’s highest court struck down a law that made cyberbullying a crime • Local law, which was passed in Albany County in 2010, was found to violate the Free Speech Clause of the First Amendment • Law defined cyberbullying as: “any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person

20. Workplace Bullying

21. Wall of “Shame”: Famous Workplace Bullies Dwight Schrute “The Office” Ari Gold “Entourage” Miranda Priestly “The Devil Wears Prada”

22. Workplace Bullying is in the News

23. Workplace Bullying • A February 2014 survey conducted by the Workplace Bullying Institute (WBI) found that 27% of American workers have been bullied in the workplace • Another 21% reported that they witnessed bullying in the workplace • 65 million workers have been affected by bullying

24. Workplace Bullying in Schools • A 2013 survey conducted by the WBI ranked the school environment as the second most prevalent industry for workplace bullying. • WBI’s Industry Survey noted that: “Bullying of teachers by other teachers and administrators is especially galling given the extraordinary attention paid to student bullying. How in the world can youngsters ever be persuaded to stop when they witness adult bullying in the schools? Adults are physically modeling the same acts they are verbally deploring. Actions speak louder than words. A teacher humiliated in front of students is robbed of her or his moral authority to manage the classroom effectively. And parents learn which teachers they can safely attack and demoralize by following the lead of administrators.” • National Education Association Survey found that 18% of teachers and 13.7% of support professionals felt that they had been bullied at the school in which they worked.

25. The Face of Bullying • Of those identified as bullies, the male-female breakdown was 69% men - 31% women • Of those identified as being bullied, the male-female breakdown was 40% men - 60% women • The WBI study concluded “most targets of workplace bullying are women” • The bullies’ rank in the organization: 56% were at least one level higher than the bullied; 33% were peers (lateral or horizontal, same level) and 11% involved subordinates

26. Types of Workplace Bullies • Experts recognize that there are many different types of workplace bullies • OvercomeBullying.org • The Screaming MiMi – loud, obnoxious, in your face • The 2-headed Snake – Dr. Jekyll / Mr. Hyde • The Constant Critic – the nitpicker, anything to prove that you are incompetent • The Gatekeeper – a petty little power-tripper who denies you resources you need to do your job • The Attention Seeker – emotionally immature and seeks above all else to be the center of attention

27. Types of Workplace Bullies • The Wannabe – can be most petty and spiteful, craving recognition for being valuable and highly competent worker, but lacking smarts and real work needed to get to the top; controlling, manipulative and insecure • The Guru – actually exhibits real competence, possibly an expert, but cannot deal with others emotionally; is a know-it-all that will not accept responsibility for his/her actions • The Sociopath or Socialized Psychopath – most dangerous workplace bully; have zero empathy for anything or anyone; without conscience; intelligent; charming; can get others to do what they want; ruthless • Serial Bullies – they do not stop once a target has left the workplace; they simply find new targets – and quickly

29. The First Problem • What IS “workplace bullying”? • No one definition • Often defined by a group/legislator/“expert” with a political or social agenda • Currently, there is no legal definition of the term

30. What is the Definition of Bullying? • SHRM: Persistent, offensive, abusive, intimidating or insulting behavior or unfair actions directed at another individual, causing the recipient to feel threatened, abused, humiliated or vulnerable • Workplace Violence Institute: Repeated, health harming-mistreatment of one or more persons (targets) by one or more perpetrators that takes one or more of the forms of: verbal abuse; offensive conduct/behaviors that are threatening, humiliating or intimidating; or work interference – sabotage – which prevents work from getting done

31. Examples of Conduct That May Constitute or Contribute to Workplace Bullying • Slandering, ridiculing or maligning a person or his/her family • Persistent name calling which is hurtful, insulting or humiliating • Abusive and offensive remarks; hazing and pranks; rumors and gossip • Pushing, shoving, kicking, poking, tripping, assault, or threat of assault • Damage to a person’s work area or property • Non-verbal threatening gestures • Socially/physically excluding a person from work-related activities • Persistent singling out of one person • Shouting, raising voice at an individual in public and/or in private • Not allowing the person to speak or express him/herself • Constant criticism on matters unrelated or minimally related to the person’s job performance or description • Ignoring/interrupting an individual at meetings

32. “Anti-Bullying” Laws • No state has, thus far, a so-called “Healthy Workplace Law” • 26 states since 2003 have introduced such a bill • No such bills have yet been enacted • 15 states (including New York) have an active Healthy Workplace Bill pending or in the legislative process

33. NY: Healthy Workplace Bill (HWB) • HWB introduced in NY more times than any other state • 2010: Senate passed it, but died in Assembly • But, it’s back… • Feb. 13, 2013 - HWB re-introduced in Assembly • 74 Assembly sponsors • Feb. 25, 2013 – HWB re-introduced in Senate • Referred to the Senate Labor Committee • June 3, 2013 -- Passed Senate Labor Committee • Referred to the Senate Finance Committee

34. Protections - HWB • “No employee shall be subjected to an abusive work environment” • Proposed definition of “abusive work environment” – an employment condition when an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm or both • Employees protected from retaliation if they opposed or reported bullying, or participated in a proceeding or investigation regarding bullying

35. Liability - HWB • Employer liable for “abusive work environment,” unless it establishes an affirmative defense: • Employer exercised reasonable care to prevent and correct actionable behavior • Employee unreasonably failed to take advantage of preventative and corrective opportunities • Any adverse employment action was based on poor performance, misconduct or economic necessity • Recall Faragher/Ellerth affirmative defenses on the Title VII side!

36. Problems - HWB • Turns a personality conflict into litigation • Mandates that all workplaces and all managers ne “nice” • Would make terminations for poor performance even more difficult

37. Remedies and Enforcement - HWB • Injunction • Reinstatement • Removal of offending party from the workplace • Lost wages • Medical expenses • Emotional distress damages • Punitive damages • Attorneys’ fees • No state enforcement power • Only provides for a civil cause of action (no criminal)

38. Potential Legal Ramifications • While there is no current law, per se, against workplace bullying, workplace bullying may still have significant legal ramifications • It serves as a gateway to legitimate or illegitimate harassment/discrimination claims • While the law is that “Title VII is not a civility code,” a bullying supervisor is not sympathetic at law • There can also be a very “fine line” between actionable unlawful harassment/discrimination and bullying • Unemployment Insurance – did the employee resign of his/her own free will? Or was he/she bullied to quit? • The usual rule is that an employee must complain and give employer an opportunity to respond or a voluntary resignation is disqualifying • Workers’ Compensation – work-related illness due to stress from bullying? • The usual rule is that ordinary workplace disagreements will not result in liability. However, serious altercations may be compensable.

39. Case Study – Jonathan Martin • On October 28, 2013 Jonathan Martin, a starting offensive lineman for the NFL’s Miami Dolphins, abruptly left the team mid-season and checked himself into a hospital. • Martin was a two-time All-American out of Stanford University, the 42nd overall pick of the 2012 NFL draft, and poised for a promising NFL career. • Media reports surfaced that Martin left the team due to bullying, primarily at the hands of fellow starting offensive lineman, Richie Incognito. Some of the allegations included racial and homophobic slurs, improper physical touching, and sexually explicit remarks about Martin’s sister and mother

40. Case Study – Jonathan Martin • The NFL retained prominent outside counsel (Ted Wells) to conduct an independent investigation of the incident. • After a thorough investigation, the “Wells Report” found: • Martin was subjected to persistent harassing language from Incognito and others (to a lesser extent) • The harassment humiliated Martin and contributed to his mental issues • The harassment contributed to Martin’s departure • The mistreatment of Martin was consistent with workplace bullying

41. Case Study – Jonathan Martin • The “Wells Report” also found: • Any racial animus toward Martin was unclear • The verbal abuse directed at Martin was contrary to the Dolphin’s workplace conduct polices • The Dolphins Head Coach and Front Office did not know about the harassment

42. Case Study – Jonathan Martin Aftermath • Miami Dolphins fired their offensive line coach and trainer • Martin was traded to the San Francisco 49ers • Incognito’s career remains in limbo • Dolphins lost two key players on their offensive line that the team now has to address for the upcoming season • Possible future legal claims by Martin against the team Lessons • Make sure that adequate workplace conduct policies are in place • Supervisory staff should keep an eye open for possible bullying • Never assume that conduct is okay even if norm in the industry • Workplace bullying could lead to the loss of valued employees (the bully, the victim, or both)

43. Responding to Bullying • Emphasize open door policies and encourage personnel concerns • If a complaint is made, investigate to determine if the problem is: • Unlawful harassment • Bullying; • Typical personality/workplace conflict; or • None of the above

44. Responding to Bullying • The School’s investigation must be • Prompt; • Thorough; AND • Impartial • Document all aspects of your investigation (take good notes) • Dates • Content of conversations • Note follow up actions taken • Once a School knows about an incident, it must conduct an investigation EVEN IF the complainant asks the School not to do so

45. Harassment v. Bullying • Harassment is a legally significant term of art that is defined by state and federal law • To be actionable against an employer, an employee must establish the harassing conduct was: • Unwelcome • Sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive environment, and • Related to protected status -if so- • There is a basis for employer liability

46. Harassment versus Bullying • Harassment– strong physical element • Bullying – psychological • Harassment – linked to sex, race, discrimination, etc. • Bullies tend to be deeply prejudiced, but race, gender, sex play little part; discrimination is usually based on competence. • Harassment – is often a fight for superiority • Bullying occurs out of a threat for control

47. Harassment versus Bullying • Harassment – tends to focus on an individual because of a specific characteristic (female, race, etc.) • Bullying – not necessarily one characteristic – but is someone who is vulnerable, competent, etc. • Harassment – at least today – is recognized • Bullying is rarely recognized and, in fact, may go undetected for weeks or months.

48. Conducting an Effective Investigation

49. Conducting an Effective Investigation • As soon as complaint is made or information acquired • The longer the delay in commencing the investigation, the more likely the response will be found not to be effectively remedial or prompt • Whether or not district receives a formal complaint – beware of informal complaints • Even if the individual asks you not to take any action

50. Factors Used to Assess Effectiveness of District’s Internal Investigation • Investigatory Planning & Follow Through • Sufficient Skills and Resources Used • Promptness • Thoroughness • Fairness & Impartiality • Accuracy of Facts • Minimization of Intrusiveness • Maximization of Confidentiality • Adequacy of Documentation