Ferrara Fiorenza P.C.

Modifying your Anti-Discrimination and Harassment Policies? Imposing Higher Standards than the Law Requires Could Actually Reduce Your Liability Exposure

Changes in the law, such as the Dignity for All Students Act, which creates additional “protected classes” of individuals, require school districts to periodically revise their anti-discrimination and harassment policies. While doing so, school districts should take the opportunity to consider other basic changes to their policies to ensure maximum flexibility to respond to personnel/student issues.   Specifically, Boards should consider modifying their policies to minimize the likelihood that counseling or discipline issued pursuant to a policy will be deemed evidence of a violation of law should there be a subsequent legal proceeding. Revising policies to clarify that a district holds employees and students to a higher standard than a given state or federal law can be an effective way of accomplishing these objectives.

Having, adequately disseminating, and following reasonable anti-discrimination and harassment policies can, under certain circumstances, provide a shield against legal claims asserted against a school district. Unfortunately, there are also many circumstances where having an anti-discrimination and harassment policy will not provide any protection against a given discrimination or harassment claim.

While it will not always bar a legal claim, having and effectively distributing anti-harassment and discrimination policies to employees or students, as the case may be, puts them on notice of expected standards for acceptable conduct and may decrease the likelihood that individuals will view discriminatory/harassing comments or conduct as acceptable at school. Hence, enacting and properly distributing such policies makes sense from both a legal and a practical perspective because doing so may provide a legal shield against certain claims and is otherwise conducive to maintaining a civil and respectful school environment.

Anti-discrimination and harassment laws are complicated and what qualifies as “unlawful” conduct under a given statute is not always intuitive. Anti-discrimination and harassment laws are not “civility codes” and there is a wide range of rude and inappropriate conduct or comments that can contribute to an undesirable school environment, yet not constitute a violation of law. For example, under Title VII of the Civil Rights Law, a law which prohibits certain types of employment discrimination, race or sex-related comments must be “severe” or “pervasive” in order to violate the statute.

Policies should clearly state that comments or conduct need not constitute a violation of law in order to violate the policy. Language can be added to put employees and students on notice that the school district holds them to a higher standard than may be imposed under a given law. This is relatively easy to do and can serve to provide school districts with an extra tool for use in punishing or deterring unwanted boorish or rude conduct, even if it does not meet a particular legal threshold for offensiveness.

Carefully drafted anti-discrimination and harassment policies can also help prevent a “no good deed goes unpunished” type outcome by permitting a school district to explain that a decision to counsel or discipline an employee or student pursuant to a given policy is not tantamount to a finding of a violation of law, for which the school district may be liable.

Should you require assistance in reviewing or revising your school district’s anti-discrimination or harassment policies, please feel free to contact our office.