The Inclusive School: Constitutional and Statutory Rights of School Employees

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1 The Inclusive School: Constitutional and Statutory Rights of School Employees Christine L. Chinni, Esq. Craig S. Meuser, Esq. Chinni & Meuser LLC Joseph P. Macary, Superintendent Vernon Public Schools

2 Outline of Presentation Accommodating Employee s Religious Expression Providing Equal Access under Title IX Immigration Issues Accommodating Employee s Public Speech on Inclusive School Issues Questions throughout 2

3 Public Employees Right to Religious Freedom Public employees enjoy many of the same rights to freedom of religion as other employees. 3

4 Public Employees Right to Religious Freedom For example, public employees have the absolute right to worship at the church of their choosing. 4

5 Public Employees Right to Religious Freedom Employees generally have the right to wear symbols associated with their religions, such as a cross, a Star of David, or a crescent. 5

6 Public Employees Right to Religious Freedom However, public school employees do not have the right to proselytize students concern the employees religion. Primarily an issue for teachers, but applies to other as well. Related to separation of church and state. 6

7 Public Employees Right to Religious Freedom Under certain circumstances, clothing with a large and prominently displayed religious message may run afoul of the prohibition against proselytizing. 7

8 Public Employees Right to Religious Freedom Additionally, a school district must direct a teacher to remove items of worship from the classroom. 8

9 Religious Garb in Schools Before asking a staff member to refrain from wearing an item of religious garb, public employers must meet a two-part test. 9

10 Religious Garb in Schools 1) The employer must show that the clothing item is disruptive to school operations; and 2) The employer must show that there is no accommodation available that will permit the employee to wear the item without disruption. 10

11 Religious Garb in Schools One possible claim of disruption: That the item in question leads to confusion on the part of students as to whether or not the school is endorsing the religion. 11

12 Title IX The basics Handling sexual harassment complaints Rights of transgender employees 12

13 Sexual Harassment Under Title IX Quid pro quo An exchange Either tolerate the unwelcome behavior to receive a benefit; or 13

14 Sexual Harassment Under Title IX Quid pro quo An exchange Tolerate the unwelcome behavior in order to avoid an adverse job action 14

15 Sexual Harassment Under Title IX Hostile Environment A work environment that, due to harassing conduct, becomes sufficiently severe, pervasive or persistent so as to interfere with an individual s ability to perform job duties. 15

16 Sexual Harassment Under Title IX - Investigations Regardless of whether the complaint is of quid pro quo or hostile environment, there are a number of characteristics that all appropriate investigations share. 16

17 Sexual Harassment Under Title IX - Investigations Get the complainant(s) to provide as much detail and as many specifics as possible. Can t require a certain level of specificity, but encourage it. 17

18 Sexual Harassment Under Title IX - Investigations If an in-district employee will be conducting investigations, may sure that he or she has received appropriate training. 18

19 Sexual Harassment Under Title IX - Investigations Conduct a thorough investigation, but work quickly. Interview any witnesses identified by the accuser or the alleged harasser. 19

20 Sexual Harassment Under Title IX - Investigations Never promise complainant, accused, or witnesses confidentiality. If a complainant attempts to take back his or her complaint because you cannot guarantee confidentiality, you cannot forego the investigation. 20

21 Sexual Harassment Under Title IX - Investigations You are on notice. If the complainant comes forward later, it will be harder to investigate. 21

22 Sexual Harassment Under Remedies Title IX - Investigations Whenever possible, if transfers are necessary, move the harasser. Never require a face to face meeting between victim and harasser. 22

23 Sexual Harassment Under Remedies Title IX - Investigations If the problem is of long standing, and/or a repeat offense, consider termination. This employee has created significant liability for your district. 23

24 Rights of Transgender Employees While gender identity is not currently a protected class under federal law, Connecticut provides full protection to transgender employees, with very limited exceptions for religious institutions. 24

25 Rights of Transgender Employees Connecticut law prohibits employement discrimination against transgender individuals. 25

26 Rights of Transgender Employees Sexual identity is not a permissible basis for failing to hire an individual, or for treating an employee less favorably than others. 26

27 Rights of Transgender Employees In addition, Connecticut prohibits discrimination against transgender individuals in access to public accomodations, including bathrooms. 27

28 Rights of Transgender Employees Transgender employees, as well as members of the public, must be permitted to use facilities appropriate to their sexual identity. 28

29 Immigrant Employees With heightened focus of immigration on the national level, pre-employment screenings are more critical than ever. 29

30 Preemployment Screenings I-9 form is mandatory for ALL employees. Cannot require it only for applicants who seem foreign. 30

31 Preemployment Screenings No need to inquire into the status of any document shared pursuant to the I-9, UNLESS the document has expired. Generally should accept documents provided as authentic. 31

32 Rights of Immigrant Employees National origin is a protected classification under both state and federal law. 32

33 Rights of Immigrant Employees Once an employer has determined that an immigrant is legally authorized to work in the United States, the immigrant employee must be treated like all other employees in the same job. 33

34 First Amendment Free Speech Free speech rights of public employees are more limited than those of other citizens 34

35 First Amendment Free Speech Multi-part analysis of public free speech claims Threshold question is the speech on a matter of public concern 35

36 First Amendment Free Speech Multi-part analysis of public free speech claims Threshold question Did the speaker engage in the speech is his private of official capacity. 36

37 First Amendment Free Speech Official Capacity If the speaker engaged in the speech is his or her official capacity, there is no protection for the speech. Garcetti v. Ceballos, 547 U.S. 410 (2006) 37

38 First Amendment Free Speech Official Capacity In Garcetti, an assistant district attorney, Richard Ceballos, spoke out against a warrant involved in an ongoing case, which he believed had been secured without sufficient evidence. 38

39 First Amendment Free Speech Official Capacity Mr. Ceballos claimed that, as a result of his speech, his employer, Los Angeles County, denied him promotional opportunities, in violation of the First Amendment. 39

40 First Amendment Free Speech Official Capacity The Supreme Court ruled, 5-4, that, because Mr. Ceballos made his statements in his official capacity, the statements were completely unprotected by the First Amendment. 40

41 First Amendment Free Speech Official Capacity If a public sector employee engages in speech as a private citizen, there is limited protection for the speech under certain circumstances. 41

42 First Amendment Free Speech Private Citizen If the speech in question does not relate to a matter of public, the speech is not protected by the First Amendment, even if the employee spoke in his capacity as a private citizen. 42

43 First Amendment Free Speech Private Citizen If the employee s speech as a private citizen does pertain to a matter of public concern, a court reviewing his or her claim will move on to the next portion of the analysis. 43

44 First Amendment Free Speech Private Citizen The next step is a balancing test: balancing the employee s interest in the speech vs. the employer s interest in responding to it. 44

45 First Amendment Free Speech Private Citizen Factors the court considers in the balancing test: Whether the statement disrupts the harmony among workers in the workplace; 45

46 First Amendment Free Speech Private Citizen Factors the court considers in the balancing test: the statement has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, and 46

47 First Amendment Free Speech Private Citizen Factors the court considers in the balancing test: whether the speech in question interferes with the normal operation of the employer's business. 47

48 First Amendment Free Speech Private Citizen The burden of proof is on the government employer that the balancing test is in its favor. 48

49 First Amendment Free Speech Private Citizen The greater the public interest in the speech, the greater the burden on the government to show that the speech is detrimental to the workplace in a significant way. 49

50 Conclusion Questions? 50

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