Employer Responsibilities

Less than one week after the Second Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination bars discrimination on the basis of sexual orientation, the Sixth Circuit Court of Appeals issued its own landmark Title VII decision finding that the antidiscrimination statute prohibits discrimination against transgender or transitioning individuals even where an employer’s religious exercise may be substantially burdened.
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Portrait of confident professor with university students in classroomEarlier this month in the city of Pittsburg, Kansas, a group of curious student journalists raised serious questions about the credentials of their newly hired principal, Amy Robertson.  According to the Kansas City Star, Robertson had received 100 percent support from the district school board, but some of the students at the Pittsburg high school were not equally convinced.  The student journalists decided to look into the legitimacy of Robertson’s qualifications.  As the students investigated Robertson’s educational credentials, what they discovered was quite suspicious and raised red flags about the new principal’s background.

First, the students learned that her university degree came from Corllins University, which operated as a diploma factory of sorts where enrollees could buy the degree of their choice.  Later, the Kansas City Star reached out to the U.S. Department of Education and learned that the federal agency had no evidence of Corllins’ operation or closure.  Subsequently, the student journalists learned that Robertson had served as Principal at the American Scientific School in Dubai, a school receiving multiple ratings of “unsatisfactory” by Dubai’s education authority, which ultimately closed down in 2013.   Armed with revealing information about Robertson’s education and career, the student journalists wrote a news story in their school paper. Days after the release of that story, Robertson resigned.

What lesson can schools take from these Pittsburg students? When considering applicants, especially for positions that require extensive scholarship and experience, schools must do more than check off credentials.  An extra search into an applicant’s background can save a school from an embarrassing situation such as that faced in Pittsburg, Kansas. 
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Group of high school girls eating healthy lunch togetherThe Food and Nutrition Service of the United States Department of Agriculture has released its final rule regarding Local School Wellness Policies under the Healthy, Hunger-Free Kids Act of 2010.  All local school wellness policies must be compliant with the new rule by June 30, 2017.  The new rule requires local educational agencies that participate in the National School Lunch and School Breakfast Programs to update their wellness policies in line with the content requirements outlined in the rule.  The new rule also highlights the requirement for local educational agencies to collaborate with community stakeholders in making the required updates to their wellness policies and in implementing the policies.  The new rule further provides that local educational agencies must assess the effectiveness of school wellness policies on at least a triennial basis.  Finally, under the new rule, each state educational agency will be responsible for evaluating the wellness policies of local educational agencies under its jurisdiction.

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Smiling woman having job interviews and receiving portfolios

Previously, Conn. Gen. Stat. § 10-222c merely required school districts to make a documented good faith effort to contact previous employers of applicants to obtain “information and recommendations which may be relevant to the [applicant’s] fitness for employment” before hiring that applicant.  As of July 1, 2016, however, local and regional boards of education, charter school governing councils, and interdistrict magnet school operators (collectively, “school districts”) are required to implement additional, more extensive background check procedures when hiring any applicant for employment in a position that would involve direct contact with students, including contracted positions.  These new requirements are imposed by Section 2 of Public Act 16-67, which amended Conn. Gen. Stat. § 10-222c.

As described more fully below, the new background check procedures imposed by Public Act 16-67 require schools districts to request specific information from an applicant, from the applicant’s prior employers, and from the State Department of Education before hiring an applicant for a permanent position involving direct student contact.  The new procedures further require that current and former employers respond to requests for information pursuant to the statute within a specified timeframe.  Moreover, Public Act 16-67 permits school districts to hire an applicant for a position involving direct student contact on a temporary basis only, pending successful completion of the new background check process and review of the applicant’s employment history.

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In recent years, there have been increasing concerns involving discrimination faced by the transgender community.  Not surprisingly, these concerns have centered on the challenges faced by gender non-conforming students and whether the needs of such students are being met by school officials.  Though the law on gender identity is still in its relative infancy, schools are now mandated to create and maintain a safe school environment free from discrimination on the basis of gender identity and expression under Connecticut law.  Though the relevant federal civil rights laws do not expressly extend to gender identity or expression, it is increasingly clear that the federal government has taken the position that there is protection for gender non-conforming students under federal law.  For example, last month, the U.S Departments of Education and Justice (the “Government”) jointly filed a “Statement of Interest” challenging a school district’s legal contention that a transgender student may only establish a claim of sex discrimination based on evidence of sex stereotyping.

In his complaint, the plaintiff, a student presenting as male, alleged that school officials refused to allow him to use male restrooms, and instead, required that he use a female staff or a unisex restroom, which resulted in peer harassment. The plaintiff also alleged that school officials revealed his status to members of the school community by repeatedly using his birth name and female pronouns when referring to him. Moreover, the plaintiff alleged that after his mother expressed concerns to school officials, an administrator told his mother she was “being overly sensitive.”

In defense, the school district filed a Motion to Dismiss arguing that the evidence proffered by the plaintiff was insufficient to establish a claim of sex discrimination.  In challenging the school district’s argument, the Government argued that Title IX provides protection for transgender students.  More specifically, the Government asserted that “[u]nder Title IX and the Equal Protection Clause, discrimination based on a person’s non-conformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes [sic] discrimination based on sex.”
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