This article was originally published in NYSIR News – Fall 1999
A middle-aged administrator claims she was denied tenure because of her age and gender. Her replacement was 10 years younger and a man. The district claims she was not performing her job satisfactorily. She filed a complaint with the State Division of Human Rights.
An applicant for a teaching position claims she was not hired because of her age. District alleges she was a poor candidate based on her application, and denies that her age was a factor. Plaintiff has proof that her age was discussed during the screening process and it was a determining factor. She has sued the district in Federal Court, alleging a violation of Title VII.
Parents of an elementary-age student want their child classified as a special education student in need of services. The Committee on Special Education did not agree. The parents brought suit under the Individuals With Disabilities Education Act and Section 504 of the Rehabilitation Act. They are seeking monetary damages and attorneys fees.
A popular assistant principal served for over 10 years in an elementary school. When the principal retired, he applied for the position. The district claimed the assistant principal was a poor administrator and he did not get the promotion. However, his personnel records do not reflect poor performance. He was subsequently transferred to another building. The assistant principal sued the district, claiming racial discrimination and retaliation.
Tenure issues. Sex discrimination. Age discrimination. Wrongful termination. Special education challenges. Retaliation. These are terms that have become part of our everyday vocabulary in an increasingly litigious society. As we approach the end of the millennium, school administrators and boards of education find themselves functioning in an environment different from the one their predecessors experienced just years ago: a legal atmosphere of increasing civil rights claims and wrongful termination litigation, initiated mostly by current or former employees. This environment is not isolated to city or suburban districts; civil rights and wrongful termination claims occur in smaller, rural districts as well.
The Employment Landscape- Projected Changes
A report issued by the Employment Policy Foundation provides interesting statistics regarding the American workforce as we enter the 21st century. The report indicates that the ethnic, racial, age, and gender composition of the workforce will change due to three forces: tight labor markets, changes in labor force participation, and changes in demographics and immigration. The end result – a more diversified workforce. Future tight labor markets are expected due to slower labor force growth and strong labor demand. Additionally, growth in labor demand has outstripped growth in the working-age population since the 1980s, and the Bureau of Labor Statistics predicts that this situation will persist into the future.
The percentage of Caucasians and males in the labor force will continue to fall into the 21st century, while the percentage of women and minority workers-especially Hispanics and Asians-will grow. Older individuals will also make up an increasing share of the workforce as baby-boomers age, life expectancies increase, and birth rates fall. *
Retaliation Charge Statistics – 1992-98
Since 1992, charges made by individuals for retaliation has increased from 11,096 to 19,114 – a 72% increase. The largest increase involves complaints made under Title 1/71.
A by-product of these changes is a greater percentage of employees falling within one or more legally protected classes. This makes it easier to initiate lawsuits that typically seek monetary damages.
Various laws afford protection; the ones most often cited in civil rights cases include:
- Title VII of the Civil Rights Act of 1964, a federal statute which prohibits discrimination based on race, color, religion, sex or national origin, also prohibits sexual harassment, a form of sex discrimination.
- Equal Pay Act of 1963, which protects men and women from sex-based wage discrimination.
- Age Discrimination in Employment Act of 1967, which prohibits discrimination in employment against individuals who are at year 40 years of age.
- Title One of the Americans with Disabilities Act (ADA) of 1990.
- Civil Rights Act of 1991, provides that an employer’s facially neutral policy or procedure may be unlawful, even absent a showing of discriminatory intent, if it has a significant adverse impact upon a protected group.
- Title IX of the Education Amendments of 1972 prohibits discrimination against students on the basis of sex in education programs or activities that receive federal financial assistance. Title IX also prohibits sexual harassment in covered educational settings. New York State Executive Law, Article 15, (Human Rights Law) promotes equal opportunities and prohibits discrimination in the workplace and education and training programs. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with receiving complaints of discrimination by individuals, received 79,591 charges in1998, the majority of which allege racial discrimination. While there has been a steady increase in complaints overall since 1992, the largest increase is in charges of sex discrimination. In addition, retaliation charges have experienced drastic growth since 1992. **
Claims Made against the School Leaders Errors & Omissions Policy.
July 1, 1998- June 30, 1999
The most frequent types of discrimination claims submitted to NYSIR were wrongful termination and age/disability discrimination. Civil rights charges and wrongful termination are responsible for the vast majority of the claims in this category.
On July 1, 1998, NYSIR began writing its own School Leaders Errors and Omissions Policy – the insurance policy most likely to cover these types of claims. The chart (left) illustrates the percentage of different types of claims received by NYSIR from July 1, 1998 to June 30, 1999.
Controlling This Exposure
The process of preventing situations that give rise to civil rights claims takes time, and it takes commitment by the entire school community. The focus should be on prevention and if needed, correcting unacceptable situations. Training and awareness education, policies and procedures, proper response to complaints and creative solutions when violations have occurred will help control the frequency and severity of these claims. In the next issue of NYSIR News, we will identify workplace exposures that can lead to litigation, and provide practical ways to control these exposures.
* The American Workplace 1999 by the (c) Employment Policy Foundation 1015 15th Street, NW, Suite 1200, Washington DC 20005
** Charge Statistics 1992-1998. From the US Equal Employment Opportunity Commission