By Kevin Lungwitz
There are myriad catch-phrases people use to describe an adverse employment situation. “My supervisor is retaliating against me,” is a prime example. The question must be asked, “What did you do that caused the retaliation?” If it is retaliation for legally protected conduct (e.g., First Amendment protected speech, whistleblowing, pursuing a grievance through the school district grievance system, reporting discrimination, etc.) then the retaliation might be illegal. If it is retaliation for showing up to work late three times in a week, the discipline is not likely actionable retaliation.
The same can be said about “harassment” or “hostile work environment.” It is not unusual for a person who has fallen under the watchful eye of their supervisor to say the supervisor is harassing them or that the working environment has become hostile. Sometimes it goes like this: “My supervisor walks through my classroom three times a week, and then writes me up for everything I do wrong. I cannot work under this stress. My principal is harassing me and my work environment has become hostile.” Since it is a supervisor’s job to document employee performance, more questions need to be asked before we can conclude that harassment or a hostile work environment exists.
A Good Starting Place is Policy DIA
Policy DIA is your school district’s anti-discrimination policy. It seeks to tackle and synthesize in one concise location the complex subjects of harassment and hostile work environment as those terms relate to unlawful discrimination. If illegal retaliation is, simply put, punishing an employee for engaging in legally protected conduct (see above), then discrimination is, simply put, punishing an employee—or allowing an employee to otherwise suffer at work—because of the employee’s race, color, age, religion, national origin, disability, sex, sexual orientation, gender identity (including transgender), or other legally protected characteristic.
Usually, retaliation can only be carried out by the employer in the form of a write-up, negative evaluation, demotion or dismissal, etc. Discrimination, however, can be perpetrated by co-workers, students, and patrons—as well as the employer.
Hostile Work Environment is Part of Harassment
Your school policy DIA (local) attempts to define these terms. It says:
Prohibited harassment of an employee is defined as physical, verbal, or nonverbal conduct based on an employee’s race, color, religion, sex, national origin, age, disability, or any other basis prohibited by law, when the conduct is so severe, persistent, or pervasive, that the conduct:
- Has the purpose or effect of unreasonably interfering with the employee’s work performance;
- Creates an intimidating, threatening, hostile, or offensive work environment (emphasis added); or
- Otherwise adversely affects the employee’s performance, environment, or employment opportunities.1
Examples of prohibited harassment may include offensive or derogatory language directed at another person’s religious beliefs or practices, accent, skin color, gender identity, or need for workplace accommodation; threatening or intimidating conduct; offensive jokes, name calling, slurs, or rumors; cyber harassment; physical aggression or assault; display of graffiti or printed material promoting racial, ethnic, or other negative stereotypes; or other kinds of aggressive conduct such as theft or damage to property.
There are two parts to the inquiry: 1. Was the alleged conduct based on a protected characteristic? If so, 2. Did it negatively affect the complainant in any of the three ways listed above?
The examples in the definition, I think we can agree, are pretty severe. These can also apply to student and coworker behavior. What if a student uses a racial slur against a teacher? If the teacher reports it, the administration needs to address it.
This definition also attempts to convey that not all conduct motivated by a protected characteristic rises to the level of “prohibited harassment.” Keep in mind that persistent and pervasive behavior can also trigger a harassment claim. For example, if the principal tells the assistant principal on picture day, “You look nice,” this might not be advisable, but it also might not rise to the level of prohibited harassment, absent other facts. But if the principal persistently comments on the attractiveness of the AP, this might rise to the level of persistent harassment.
So, if the Alleged Wrong-Doer’s Behavior Does Not Technically Rise to the Level of Prohibited Harassment, They Go Free?
It is not unusual for a harassment/discrimination investigation to conclude the alleged wrong-doer did not technically harass anyone; but that the alleged wrong-doer used poor judgment. Policy DIA (local) is ready for this circumstance. It says, “The District may take action based on the results of an investigation, even if the conduct did not rise to the level of prohibited or unlawful conduct.” So, disciplinary action may be taken even if the district’s investigation concludes that no laws were violated.
What To Do About It
If you are in a supervisory position and someone alleges “harassment” or “hostile work environment,” you must know where to direct the employee. Federal law requires the district to have a coordinator—a point person—for all such complaints that arise in the district. Look for policy DNA (exhibit) in your district’s policy manual on the district’s website. This should list the people to whom such allegations may be made. Quite frankly, if the complainant files a grievance or complains to the HR department, that grievance will be suspended until a DIA (discrimination) investigation is done. Once received, an investigation ensues, the details of which are spelled out in policy DNA (local).
Conclusion
As a supervisor, out of an abundance of caution and to set an example, you should not make comments or jokes about any of the protected characteristics listed above, no matter who you are talking about. Your staff will take cues and learn from your behavior. Remember that times have changed and they are always changing. As a supervisor, you may be falsely led into believing your off-color jokes are funny, until one day they are not. Also, as a supervisor, you should be ready to facilitate a discrimination complaint to the point person in the district, should someone make a complaint to you.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
¹This definition was extrapolated from a student-on-student harassment case that was decided by the United States Supreme Court in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). Now it is used as a measuring stick for a variety of harassment claims.
TEPSA News, November/December 2021, Vol 78, No 6
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
