Feds Anti-Bully Plan

Minnesota’s largest school district will take wide-ranging steps to protect LGBT students from bullying and harassment under the terms of a settlement reached in a lawsuit filed by the U.S. Dept. of  Justice (DOJ) and the U.S. Dept. of Education’s Office of Civil Rights (OCR).

The Anoka-Hennepin School Board approved the proposed settlement on Monday but it must still be approved by U.S. District Judge Joan N. Ericksen to take effect. The federal agencies will monitor the district’s compliance with the agreement until 2017.

The settlement is  significant with respect to the problem of workplace bullying for two reasons.

It sheds light on what the DOJ and the OCR deem to be important steps to address the general problem of harassment.

And the feds based their lawsuit on alleged violations of laws that potentially could apply to targets of workplace bullying — Discrimination on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution; Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c–2000c-9 (Title IV), and; Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (Title IX).

There are major differences between how the law treats students and adults but the Minnesota school settlement could be interpreted as evidence that society no longer condones bullying and harassment on the basis of sex or perceived sexual orientation. If that is the case, harassment of this type should not be acceptable in either schools or the workplace.

Authorities began investigating the Anoka-Hennepin School District in 2010 after receiving a complaint that it had failed to adequately address peer-on-peer harassment on the basis of sex and sexual orientation. The Southern Poverty Law Center and the National Center for Lesbian Rights subsequently filed a lawsuit on behalf of six students, who will received $270,000 under the settlement.

The students said they faced a constant torrent of anti-gay slurs due to their actual or perceived sexual orientation. They also said they were choked, shoved, urinated on and even stabbed with a pencil.

The students said an 18-year-old “gag rule” adopted by the district hampered the efforts of teachers to end the harassment and stigmatized gay and lesbian students.The policy required staff to stay neutral on LGBT topics in school. The policywas replaced in February with a new policy that requires district staff to affirm the dignity and self-worth of all students, including LGBT students.

Among other things, the settlement requires the District to:

  • Retain an Equity Consultant to provide a systemic review and recommend any needed revisions to district policies related to harassment, as well as district procedures relating to the investigation and response to incidents of harassment, parental notification, and tracking of harassment incidents.
  • Hire a Title IX/Equity Coordinator to implement district policies and procedures, monitor complaints, ensure that district administrators and staff adhere to sex and sexual orientation-based discrimination laws, and identify trends and common areas of concern.
  • Work with the Equity Consultant and Title IX Coordinator/Equity Coordinator to develop improved and effective trainings on harassment for all students and employees who interact with students.
  • Ensure that a counselor or other qualified mental health professional to be available during school hours for students in need.
  • Hire a mental health consultant to review and access current practices in the district relating to assisting students who are subject to harassment.
  • Provide additional specificity to further strengthen the District’s annual anti-bullying survey.
  • Expand the district’s harassment-prevention task force formed the summer of 2011 to advise the district regarding how to best foster a positive educational climate for all students.
  • Work with the Equity Consultant to further identify hot spots in district schools where harassment is or becomes problematic, including outdoor locations and on school buses, and work with the Equity Consultant to develop actions that better align with a safe, welcoming school environment.
  • Require District personnel  to investigate, address, and respond appropriately to every harassment incident, whether reported (verbally or in writing) by the harassed student, a witness, a parent, or any other individual; observed by any District employee; or brought to the District’s attention by any other means;
  • Provide contact information, including the physical address, phone number and email address, for the District’s Title IX Coordinator and Equity Coordinator.
  • Develop procedures for parental notifications that are sensitive to a student’s right of privacy regarding his or her real or perceived orientation or gender identity.
  • Provide a link on the school web site to an incident reporting form and allow direct electronic submission of complaints.

Harassment was defined in the federal lawsuit as ” … the use of derogatory language, intimidation, and threats; unwanted physical contact and/or physical violence, or the use of derogatory language and images in graffiti, pictures or drawings, notes, e-mails, electronic postings and/or phone messages related to a person’s membership in a protected class.”

The lawsuits will be dismissed with the district denying fault or wrongdoing.

Federal investigators reviewed more than 7,000 district documents and included interviews with more than 60 individuals, including current and former students, parents, district staff, teachers and administrators.

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.