H.113

Introduced by   Representative Larson of Burlington

Referred to Committee on

Date:

Subject:  Education; public accommodations; harassment

Statement of purpose:  This bill proposes to expand the definition of harassment in schools and other public accommodations to clarify the meaning of sexual and racial harassment; require that school harassment policies include a provision that a person who commits harassment and a school or school district in which harassment is committed may be liable in civil court; specify elements of harassment prevention training required for teachers; require that the commissioner of education certify school civil rights officers appointed by each school board; clarify that a right of action exists in the public accommodations law for harassment that takes place in a school; and provide an affirmative defense for a school official who promptly responds to a harassment complaint.

AN ACT RELATING TO HARASSMENT IN SCHOOLS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  16 V.S.A. § 11a(26) is amended to read:

(26)  “Harassment” means unlawful harassment which constitutes a form of discrimination.  It means verbal or physical conduct or behavior based on a student’s or motivated by a perceived race, creed, religion, color, ancestry, national origin, marital status, sex, sexual orientation, place of birth, age, or disability and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.  Harassment includes:

(A)  Sexual harassment is also a form of unlawful harassment and which means unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

(A)  Submission to that conduct is made either explicitly or implicitly a term or condition of a student’s education.

(B)  Submission to or rejection of such conduct by a student is used as a component of the basis for decisions affecting that student.

(C)  The the conduct or behavior has the purpose or effect of either creating an intimidating, hostile, or offensive school environment or substantially undermining and detracting from or interfering with a student’s educational performance or creating an intimidating, hostile or offensive educational environment access to the school’s resources and activities.

(B)  Racial harassment, which means unwelcome verbal, written, or physical conduct directed at the characteristics of a person’s actual or perceived race or color, such as using nicknames emphasizing stereotypes, racial slurs, comments, insults, or taunts on manner of speaking and negative references to racial customs when such conduct or behavior has the purpose or effect of either creating an intimidating, hostile, or offensive school environment or substantially undermining and detracting from or interfering with the student’s educational performance or access to the school’s resources and activities.

Sec. 2.  16 V.S.A. § 565(b)(1) is amended to read:

(1)  The harassment prevention policy shall include:

(A)  A statement prohibiting harassment of a student.

(B)  The definition of harassment pursuant to subdivision 11(a)(26) of this title.

(C)  Consequences and appropriate remedial action for staff or students who commit harassment, and the school and school district in which the harassment was committed.  Consequences may include an action for injunctive relief or for civil joint and several liability, or both, pursuant to 9 V.S.A. § 4506(e).  Prompt and appropriate remedial action taken by an employee or agent of the school or school district which is reasonably calculated to stop the harassment shall constitute an affirmative defense to a claim.  Nothing in this section shall prohibit corrective action or discipline of a student, school employee, or school agent for conduct which is harassment but does not rise to the level of unlawful harassment.

(D)  A procedure that directs students and staff how to report violations and file complaints.

(E)  A procedure for investigating reports of violations and complaints.

(F)  A description of how the board will ensure that teachers and other staff members receive training in preventing, recognizing and responding to harassment.  At a minimum, training shall include techniques for:

(i)  documenting the report of an incident of potential harassment;

(ii)  acting immediately when an incident is reported;

(iii)  providing support to a person who has been harassed and ensuring that the person is not subject to retaliation;

(iv)  taking prompt and appropriate remedial action to end the harassment; and

(v)  reporting to the parent or guardian as soon as possible, using means allowed within confidentiality laws, the result of an investigation and the remedial action taken.

(G)  A process for reporting the number and types of complaints of harassment, including the results of investigations and the responses to both the state board of education and the Vermont human rights commission.

Sec. 3.  16 V.S.A. § 565(c) is amended to read:

(c)  Each school district shall establish rules setting forth procedures for dealing with harassment and hazing of students which include:

(1)  Annual designation of two or more people within the institution to receive complaints and a procedure for publicizing those people’s availability.

(2)  A procedure for publicizing the availability of the Vermont human rights commission and the federal Department of Education’s Office of Civil Rights and other appropriate state and federal agencies to receive complaints of harassment.

(3)(2)  A statement that acts of retaliation for reporting of harassment or for cooperating in an investigation of harassment is unlawful pursuant to subdivision 4503(a)(5) of Title 9.

Sec. 4.  16 V.S.A. § 656(d) is amended to read:

(d)  Annually, prior to the commencement of curricular and cocurricular activities, the school board shall provide notice of the policy and procedures developed under this section to students, custodial parents or guardians of students, and staff members.  Notice to students shall be in age-appropriate language and should include examples of harassment and hazing.  At a minimum, this notice shall appear in any publication of the school district that sets forth the comprehensive rules, procedures and standards of conduct for the school and shall be posted prominently in an area of the school routinely visited by students and staff.  The board shall use its discretion in developing and initiating age-appropriate programs to effectively inform students about the substance of the policy and procedures in order to help prevent harassment, and hazing.

Sec. 5.  16 V.S.A. § 567 is added to read:

§ 567.  CIVIL RIGHTS OFFICERS

(a)  Annually, each school district board shall forward to the commissioner the names of two or more school employees for each school in its district who are to be designated as school civil rights officers to receive and investigate complaints of harassment and hazing.  The commissioner shall give a certificate of appointment to each officer.  If a board fails to recommend officers, the commissioner, after 30 days’ notice in writing, shall appoint two civil rights officers for each school in the district.

(b)  A school board of a school district which maintains more than one school may appoint two civil rights officers for the entire district with permission of the commissioner. 

(c)  The commissioner may remove a school civil rights officer at any time for cause.  Vacancies shall be filled in the same manner as the original appointment.

(d)  The commissioner, in collaboration with the human rights commission and the attorney general, shall offer annual training to all school civil rights officers.  The training shall include a review of the provisions of law relating to harassment and hazing in a school, a description of model hazing and harassment policies developed by the commissioner, and guidance on receipt, investigation, and resolution of complaints of harassment and hazing.

Sec. 6.  9 V.S.A. § 4506(e) is added to read:

(e)  A person aggrieved by a violation of this chapter involving harassment, as defined in 16 V.S.A. § 11(26), in a school may bring an action for injunctive relief and compensatory and punitive damages and any other appropriate relief against the school, school district, and perpetrator of the harassment, who shall be jointly and severally liable in the event that the action is proven in the superior court of the county in which the violation is alleged to have occurred.  The prompt and appropriate remedial action by an employee or agent of the school or school district which is reasonably calculated to stop the harassment shall constitute an affirmative defense to the claim.

Sec. 7.  21 V.S.A. § 495d(1) and (13) are amended to read:

(1)  “Employer” means any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, and any agent of such employer, which has one or more individuals performing services for it within this state.  “Agent of such employer” includes a supervisor who acts in violation of this chapter or who has actual or constructive knowledge of unlawful conduct and who fails to take prompt appropriate remedial action.  An agent of an employer shall be individually liable to the affected employee.

(13)  “Harassment” means a form of discrimination which is unlawful verbal or physical conduct or behavior based on or motivated in whole or in part by a person’s actual or perceived race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, age, or disability.  Harassment includes:

(A)  “Sexual harassment,” which is a form of sex unlawful discrimination and means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

(A)(i)  submission to that conduct is made either explicitly or implicitly a term or condition of employment; or

(B)(ii)  submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or

(C)(iii)  the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment; and

(B)  “Racial harassment,” which is a form of unlawful discrimination and includes unwelcome verbal, written, or physical conduct directed at the characteristics of a person’s actual or perceived race or color such as using nicknames, emphasizing stereotypes, racial slurs, comments, insults, or taunts on manner of speaking, and negative references to racial customs when:

(i)  submission to that conduct is made either explicitly or implicitly a term or condition of employment; or

(ii)  submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or

(iii)  the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.