Policy Manual

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Policy ACAB-R

The South Portland School Board has adopted these employee procedures in order to provide prompt and equitable resolution of employee complaints of discrimination and harassment, including sexual harassment, as described in policies AC – Nondiscrimination/Equal Opportunity and Affirmative Action and ACAB – Harassment and Sexual Harassment of School Employees. 

The complaint procedure in Section 2 may also be used, to the extent applicable, by visitors, including parents, volunteers and others having lawful access to the schools who wish to make a complaint of discrimination or harassment. 

Complaints alleging harassment or discrimination against students based on a protected category should be addressed through the Board’s Student Discrimination/Harassment and Title IX Sexual Harassment Complaint Procedures (ACAA-R). 

Any individual who is unsure about whether discrimination or harassment has occurred and/or which complaint procedure applies is encouraged to contact the Affirmative Action Officer or the Title IX Coordinator. 

Kathleen Cox, Director of Instructional Support/ Title IX Coordinator 

120 Wescott Road, South Portland, Maine 04106 

871-0555 x3006 

coxk@spsdme.org 

Director of Finance and Human Resources/Affirmative Action Officer       

120 Wescott Road, South Portland, Maine 04106 

207-871-0555 x 3003 

1. DEFINITIONS 

For purposes of these complaint procedures, the following definitions will be used. The Affirmative Action Officer or the Title IX Coordinator shall assess all reports and complaints to ensure that they are addressed under the appropriate policy and complaint procedure.

Discrimination/Harassment Complaint Procedure Definitions 

1. “Discrimination or harassment”: Discrimination or harassment on the basis of an individual’s membership in a protected category, which, for employees, includes actual or perceived race, color, sex, sexual orientation, gender identity or expression, religion, ancestry or national origin, age, familial status, disability, or genetic information are prohibited. For the purpose of this policy, “race” includes traits associated with race, including but not limited to, hair texture, Afro hairstyles, and protective hairstyles, including braids, twists, and locs.

2. “Discrimination”: Treating individuals differently, or interfering with or preventing them from enjoying the advantages or privileges afforded to others because of their membership in a protected category. 

3. “Harassment”: Oral, written, graphic, electronic or physical conduct relating to an individual’s actual or perceived membership in a protected category that is sufficiently severe, pervasive or persistent so as to interfere with or limit that individual’s ability to participate in the school unit’s programs or activities by creating a hostile, intimidating or offensive environment. 

4. Under Title VII and under Maine law/regulations, sexual harassment is defined differently than under Title IX. Maine Human Rights Commission regulations define sexual harassment as conduct on the basis of sex which satisfies one or more of the following: 

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; 

• Submission to or rejection of such conduct by an employee is used as the basis for employment decisions affecting the employee; or 

• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 

5. “Sexual orientation”: Under Maine law, this means a person’s “actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.” 

6. “Gender identity”: Under Maine law, this means “the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s assigned sex at birth.” 

7. “Complaint” is defined as an allegation that an employee or other third party has been discriminated against or harassed on the basis of race, color, sex, sexual orientation, gender identity, age, religion, ancestry, national origin, genetic information or disability (and in regard to sex, conduct not otherwise addressed in the Title IX regulations and Section 3 of ACAB-R). 

8. “Employee”: Whenever the term “employee” is used in Section 2, it includes visitors or others who have a lawful basis to make a complaint of discrimination or harassment. 

Title IX Sexual Harassment Complaint Procedure Definitions 

1. “Title IX sexual harassment”: Under the federal Title IX regulations, sexual harassment includes the following conduct on the basis of sex which takes place within the context of the school unit’s education programs and activities: 

• “Quid pro quo” sexual harassment by a school employee: Conditioning a school aid, benefit or service (such as a promotion or favorable evaluation) on an individual’s participation in unwelcome sexual conduct; 

• “Hostile environment” sexual harassment: Unwelcome conduct based on sex that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies an individual’s equal access to the school unit’s education programs and activities; or 

• Sexual assault, dating violence, domestic violence and stalking as these terms are defined in federal laws.

2. “Report”: Under the Title IX regulations, any individual may make a report of sexual harassment involving an employee, whether the individual is the alleged victim or not. A report must be made to the Affirmative Action Officer or the Title IX Coordinator. A report triggers certain actions by the AAO or the Title IX Coordinator for the alleged victim of sexual harassment, but an investigation is not conducted unless a “Formal Complaint” is filed. 

3. “Formal Complaint”: Under Title IX, the alleged victim of sexual harassment can file a written complaint that triggers the complaint procedure in Section 3 of ACAB-R. Only a school employee (and in certain circumstances, the AAO or the Title IX Coordinator) may file a formal complaint. 

4. “Employee”: For the purpose of this procedure, “employee” means an applicant for employment or a current employee of the school unit. 

Discrimination/Harassment Complaint Procedure 

This procedure should be used for any complaint of unlawful harassment or discrimination based on a protected category which does not involve Title IX sexual harassment. 

1. How to Make A Complaint 

• An employee who believes they have been unlawfully harassed or discriminated against(as such terms are defined in Section 1.A.1-3) is encouraged to try to resolve the problem by informing the individual(s) that the behavior is unwelcome or offensive, and requesting that the behavior stop. This shall not prevent the employee from making an immediate complaint to the AAO or the Title IX Coordinator. 

• Any employee who believes they have been harassed or discriminated against should report their concern promptly to the AAO or the Title IX Coordinator. A written complaint must include basic information concerning the allegation of harassment or discrimination (i.e., date, time, location, individual(s) who alleged engaged in harassment or discrimination, description of allegation). 

• Employees who are unsure as to whether unlawful discrimination or harassment has occurred, or who need assistance in preparing a written complaint, are encouraged to discuss the matter with the AAO or the Title IX Coordinator. 

• Employees will not be retaliated against for reporting suspected discrimination or harassment, or for participating in an investigation. Retaliation is illegal under federal and state nondiscrimination laws, and any retaliation will result in disciplinary measures, up to and including discharge. 

• Any employee who believes they have been discriminated against or harassed is encouraged to utilize the school unit’s complaint procedure. However, employees are hereby notified that they also have the right to report incidents of discrimination or harassment to the Maine Human Rights Commission, 51 State House Station, Augusta, Maine 04333 (telephone: 207-624-6290) and/or to the federal Office for Civil Rights, U.S. Department of Education, 5 Post Office Square, 8th Floor, Boston, MA 02109-3921 (telephone: 617-289-0111). 

Complaint Handling and Investigation

1. The AAO or the Title IX Coordinator will promptly inform the Superintendent and the person who is the subject of the complaint (respondent) that a complaint has been received. 

2. The AAO or the Title IX Coordinator may pursue an informal resolution of the complaint with the agreement of the parties involved. Any party to the complaint may decide to end the informal resolution process and pursue the formal process at any point. Any informal resolution is subject to the approval of the parties and the Superintendent, who shall consider whether the resolution is in the best interest of the school unit and the parties in light of the particular circumstances and applicable policies and laws. 

3. The AAO or the Title IX Coordinator may implement supportive measures (consistent with any applicable collective bargaining agreement provisions) to reduce the risk of further discrimination or harassment while an investigation is pending. Examples of supportive measures include, but are not limited to, ordering no contact between the individuals involved; changing a work location or changing a work schedule.

4. The complaint will be investigated by a trained internal or external individual designated by the Superintendent and the AAO or the Title IX Coordinator. Any complaint about an employee who holds a supervisory position shall be investigated by a person who is not subject to that supervisor’s authority. Any complaint about the Superintendent should be submitted to the Chair of the Board, who should consult with legal counsel concerning the handling and investigation of the complaint. 

5. The investigator shall consult with the AAO or the Title IX Coordinator as agreed during the investigation process. 

6. The respondent will be provided with an opportunity to be heard as part of the investigation. The complainant shall not be required to attend meetings with the respondent, but may choose to do so as part of an informal resolution process.

7. The complainant and the respondent may suggest witnesses and/or submit materials they believe are relevant to the complaint. 

8. If the complaint is against an employee of the school unit, any rights conferred under an applicable collective bargaining agreement shall be applied. 

9. Privacy rights of all parties to the complaint shall be maintained in accordance with applicable state and federal laws. 

10. The investigation shall be completed within 40 school days of receiving the complaint, if practicable. Reasonable extensions of time for good reason shall be allowed. 

11. The investigator shall provide a written report and findings to the AAO or the Title IX Coordinator. 

Findings and Subsequent Actions 

1. The AAO or the Title IX Coordinator shall consult with the Superintendent concerning the investigation and findings. 

2. If there is a finding that discrimination or harassment occurred, the AAO or the Title IX   Coordinator, in consultation with the Superintendent: 

• Shall determine what remedial action, if any, is required to end the discrimination or harassment, remedy its effect and prevent recurrence; and 

• Determine what disciplinary action should be taken against the individual(s) who engaged in discrimination or harassment, if any. 

• Inform the complainant and the respondent in writing of the results of the investigation and its resolution (in accordance with applicable state and federal privacy laws). 

Appeals 

1. After the conclusion of the investigation, the complainant or respondent may seek an  appeal of the findings solely on the basis of either: (a) prejudicial procedural error or (b) the discovery of previously unavailable relevant evidence that could significantly impact the outcome. 

2. Appeals must be submitted in writing to the Superintendent within five school days after receiving notice of the resolution. 

3. Upon receipt of a valid appeal, the Superintendent shall provide notice to the other party, along with an opportunity to provide a written statement within five school days. 

4. The Superintendent shall review the available documentation and may conduct further investigation if deemed appropriate. 

5. The Superintendent’s decision on the appeal shall be provided to the parties within 10 school days, if practicable. The Superintendent’s decision shall be final. 

Records 

The AAO or the Title IX Coordinator shall keep a written record of the complaint process. 

Title IX Sexual Harassment Complaint Procedure 

This section should be used only for complaints of Title IX sexual harassment as defined in Section 1.B.1. 

How to Make A Report 

• Any individual who believes an employee has been sexually harassed (as this term is  defined in Section 1.B.1) may make a report to the Title IX Coordinator. 

• If the individual making the report is the alleged victim, or if the alleged victim is identified by the individual making the report, the Title IX Coordinator will meet with the alleged victim to discuss supportive measures that may be appropriate in the particular circumstances and explain the process for filing a formal complaint.

  • Supportive measures are individualized measures designed to ensure the employee can continue to access and perform their work (such as requiring no contact between individuals, temporarily moving work locations or changing schedules, etc.). 

  • Supportive measures may be continued even if the alleged victim chooses not to file a formal complaint, if appropriate under the particular circumstances. 

3. The school unit cannot provide an informal resolution process for resolving a report until a formal complaint is filed.

4. Employees will not be retaliated against for reporting sexual harassment, or for participating in an investigation. Retaliation is illegal under federal and state nondiscrimination laws, and any retaliation will result in disciplinary actions, up to and including discharge. 

5. Any employee who believes they have been the victim of sexual harassment is encouraged to utilize the school unit’s complaint procedures. However, employees are hereby notified that they also have the right to report sexual harassment to the Maine Human Rights Commission, 51 State House Station, Augusta, Maine 04333 (telephone: 207-624-6290) and/or to the federal Office for Civil Rights, U.S. Department of Education, 5 Post Office Square, 8th Floor, Boston, MA 02109-3921 (telephone: 617-289-0111) 

6. The Superintendent shall be informed of all reports and formal complaints of sexual harassment. 

How to Make A Formal Complaint 

1. An alleged victim may file a formal written complaint requesting investigation of alleged Title IX sexual harassment. The written complaint must include basic information concerning the allegation of sexual harassment (i.e., date, time, location, individual(s) who alleged engaged in sexual harassment, description of allegation). 

Employees who need assistance in preparing a formal written complaint, are encouraged to consult with the Title IX Coordinator. 

2. In certain circumstances, the Title IX Coordinator may file a formal complaint even when the alleged victim chooses not to. Examples include if the respondent (person alleged to have engaged in sexual harassment) has been found responsible for previous sexual harassment or there is a safety threat within the school unit. In such cases, the alleged victim is not a party to the case, but will receive notices as required by the Title IX regulations at specific points in the complaint process. 

3. In accordance with the Title IX regulations, the Title IX Coordinator must dismiss a formal complaint under this Title IX procedure if: a) the conduct alleged in the formal complaint does not constitute sexual harassment under the Title IX regulations and this policy; b) if the conduct alleged did not occur within the scope of the school unit’s education programs and activities, or c) did not occur in the United States.

4. In accordance with the Title IX regulations, the Title IX Coordinator may dismiss a formal complaint under this Title IX procedure if: a) a complainant withdraws the formal complaint, or withdraws particular allegations within the complaint; b) the respondent is no longer employed by the school unit; or c) there are specific circumstances that prevent the school unit from gathering evidence sufficient to reach a determination regarding the formal complaint.

    

5. If a formal complaint is dismissed under this Title IX procedure, the Title IX Coordinator will promptly and simultaneously send written notices to the parties explaining the reasons. Parties have the opportunity to appeal dismissals in accordance with subsection I below. 

6. If the conduct alleged potentially violates other laws, Board policies and/or professional expectations, the school unit may address the conduct under Section 2 or another applicable policy/procedure. 

Administrative Leave 

The Superintendent may place a respondent on administrative leave during the complaint procedure: 

1. If there is a determination (following an individualized safety and risk analysis) that there is an immediate threat to the physical health or safety of an individual arising from the allegations of sexual harassment. Examples of such circumstances might include, but are not limited to, a continued threat of violence against a complainant by a respondent, or a respondent’s threat of self-harm due to the allegations. 

2. The respondent will be provided notice of the administrative leave, and will be provided an opportunity to challenge the decision following the removal (this is an o