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OCR Releases Policy Guidance on Retaliation
Apr 24th, 2013 by

Dear Stakeholder:

Today, the Office for Civil Rights has released guidance to remind school districts, postsecondary institutions, and other Federal funding recipients of the legal prohibition against retaliation with regard to civil rights complaints and to describe OCR’s methods of enforcement. The DCL does not contain any new policy or new interpretations of law and is supported by well-established caselaw. However, OCR has never before issued any public guidance describing its enforcement of recipients’ non-retaliation obligations.  We chose to do so here because we feel that this is an important area for clear concise guidance as nearly one fifth of all complaints received by OCR raise retaliation allegations.

 

Please take a moment to read this important guidance at:

·         http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html

·         http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.pdf

 

As always, if you have any questions, requests for technical assistance, or outreach opportunities where OCR can play a role please contact one of our regional offices.  You can always find our list of offices and the regions they support at https://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.

 

Remember to follow the Office for Civil Rights on twitter @EDcivilrights.

 

Thank you.

 

Office for Civil Rights

 

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U.S. Department of Education Says Gay-Straight Alliances Must Be Allowed (law is not new, just a formal reminder)
Jul 5th, 2011 by

Two very significant items this week:

 1)     U.S. Department of Education Says Gay-Straight Alliances Must Be Allowed (law is not new, just a formal reminder)

http://www2.ed.gov/policy/elsec/guid/secletter/110607.html

 2)     Gender Identity and Expression added to list of protected classes. (nondiscrimination statements will need to be opdated)

 

 

U.S. DEPARTMENT OF EDUCATION

 

LEGAL GUIDELINES REGARDING THE EQUAL ACCESS ACT AND THE RECOGNITION OF STUDENT-LED NONCURRICULAR GROUPS

 

The Equal Access Act ensures that noncurricular student groups are afforded the same access to public secondary school facilities as other, similarly situated student groups.  Based on decisions of the U.S. Supreme Court and other federal courts interpreting the Act, the U.S. Department of Education’s Office of the General Counsel provides the following guidance.

 

1.            General Scope

 

The Act applies to:  (1) any public secondary school (2) that receives federal funds (3) and creates a limited open forum by allowing one or more noncurricular student groups to meet on its premises (4) during noninstructional time.[1]  Schools meeting these criteria are forbidden to prevent access or deny fair opportunity to students who wish to hold meetings on school grounds.

 

The Act does not mention specific types of student groups to which equal-access rights apply.  It instead broadly provides that schools allowing at least one “noncurriculum related student group” may not deny comparable access to any other student group because of the “religious, political, philosophical, or other content of the speech at [the group’s] meetings.”[2]  The Act therefore prohibits schools from banning student-led noncurricular groups because of the content of the speech at the groups’ meetings.

 

The Act identifies narrow exceptions; however, schools may not ban or suppress the speech of student groups based on a “desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[3]

 

2.            Legal Principles and Obligations

 

When framing policies regarding equal access, schools are advised to consider the following:

 

  • If a federally funded public secondary school allows at least one noncurriculum-related student group to meet on school premises during noninstructional time, it has created a “limited open forum” that triggers the Act’s protections.  In that case, the school may not deny the same access for similarly situated clubs on the basis of the content of the clubs’ speech.[4]

 

  • “Access” refers not only to physical meeting spaces on school premises, but also to recognition and privileges afforded to other groups at the school, including, for example, the right to announce club meetings in the school newspaper, on bulletin boards, or over the public-address system.[5]  Noninstructional time is “time set aside by the school before actual classroom instruction begins or after actual instruction ends,”[6] and covers student meetings that take place before or after school as well as those occurring during lunch, “activity periods,” and other noninstructional periods during the school day.[7]

 

  • The Supreme Court defines a curriculum-related student group as one that “directly relates” to the body of courses offered at a school.[8]  A student group directly relates to a school’s curriculum “if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit.”[9]  According to the Supreme Court, for example, a “French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future.”[10]

 

  • Schools retain the right to exclude groups that are directed, conducted, controlled, or regularly attended by nonschool persons.[11]

 

  • Noncurricular student groups may have faculty sponsors without compromising the requirement that they are student-initiated.[12]  “The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.”[13]

 

  • Schools retain authority to ban unlawful groups, maintain discipline and order on school premises, protect the well-being of students and faculty, assure that students’ attendance at meetings is voluntary, and restrict groups that materially and substantially interfere with the orderly conduct of educational activities.[14]  But the Act does not permit schools to ban groups or suppress student speech based on unpopularity of the message or on unfounded fears that the group may incite violence or disruption.  Where the material and substantial interference is caused not by the group itself but by those who oppose the group’s formation or message, the disruption will not justify suppressing the group.[15]

 

3.            Issues to Consider When Applying the Act

 

  • Viewing Access as an Endorsement of a Student Group or its Message:  A school may not discriminate against a student group on the basis that allowing access would constitute an endorsement of the group.  The U.S. Supreme Court has specifically recognized that public “schools do not endorse everything they fail to censor,” because secondary school students are generally capable of understanding that schools do not endorse or support speech that an institution merely permits on a nondiscriminatory basis.[16]  Thus, granting access on a nondiscriminatory basis does not constitute a school’s endorsement of a group’s activities, and avoiding the appearance of endorsement does not, therefore, justify denying the group equal access.

 

  • Defining the Meaning of “Curriculum Related” Too Broadly:  If a school has not created a limited open forum (i.e., the only student groups are curricular), the Act does not require the school to grant a request to allow a noncurricular group to meet.  The meaning of “curriculum related” cannot, however, be broadened in ways that would render the Act meaningless.  For example, a school cannot evade the Act by declaring that all existing student clubs are curricular, and invoking some broad, vague educational goals that they all serve, while labeling as noncurricular any student groups that it wishes to exclude.[17]  What matters are the groups’ actual relationships to the curriculum and the school’s actual practices in granting access.[18]

 

  • Banning All Noncurricular Groups:  A school could close a limited open forum by banning all noncurricular groups, thereby avoiding any obligations under the Act.  But successfully closing a previously open forum will often prove difficult:  In an Equal Access Act challenge, a written policy banning noncurricular clubs is insufficient and a court will scrutinize a school’s actual practices to ensure each remaining club is genuinely curricular.[19]

 

  • Invoking Moral Reasons or Censorship of Explicit Content:  The Act guarantees schools’ right “to protect the well-being of students and faculty.”[20]  And the U.S. Supreme Court has recognized that public schools may restrict students’ access to and expression of obscene or sexually explicit material to protect students.[21]  But the Act does not permit schools to ban a group based on school officials’ general moral disapproval or on assumptions about the content of speech at group meetings.  A school would, for example, violate the Act by excluding a group based on the fact that it addresses issues of interest to members of a minority faith or to lesbian, gay, bisexual and transgender (LGBT) students.[22]

 

  • Viewing Student Groups as Controlled or Directed by Nonschool Persons:  Schools may uniformly deny access to groups that are controlled, directed, or regularly attended by nonschool persons.[23]  But schools may not exclude certain student groups merely because of national affiliations, while providing access to other groups with similar affiliations.[24]  For instance, if a school recognizes a service club or honor society such as Beta Club or Key Club that shares its name with a national organization, the school cannot deny access to a gay-straight alliance merely because it shares a name with a national organization.[25]

 

  • Imposing Special Requirements on Some Student Groups:  The Act requires the school to treat each group like other, similarly situated groups, and prohibits imposing additional requirements on some student-run groups that are not imposed on all others.[26]  A school would violate the Act by, for example, requiring a gay-straight alliance to change its name, requiring it to have a faculty adviser when faculty advisers are not generally required for all other groups, or imposing different requirements for the group’s posters, leaflets, and announcements than the school places on other groups’ promotional materials.

 

/s/

Charles P. Rose

General Counsel

June 14, 2011

 

 

 

 

 

House Bill No. 6599

Public Act No. 11-55

AN ACT CONCERNING DISCRIMINATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 46a-51 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

As used in section 4a-60a and this chapter:

(1) “Blind” refers to an individual whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or whose visual acuity is greater than 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees;

(2) “Commission” means the Commission on Human Rights and Opportunities created by section 46a-52;

(3) “Commission legal counsel” means a member of the legal staff employed by the commission pursuant to section 46a-54;

(4) “Commissioner” means a member of the commission;

(5) “Court” means the Superior Court or any judge of said court;

(6) “Discrimination” includes segregation and separation;

(7) “Discriminatory employment practice” means any discriminatory practice specified in section 46a-60, as amended by this act, or 46a-81c;

(8) “Discriminatory practice” means a violation of section 4a-60, as amended by this act, 4a-60a, 4a-60g, 46a-58, as amended by this act, 46a-59, as amended by this act, 46a-60, as amended by this act, 46a-64, as amended by this act, 46a-64c, as amended by this act, 46a-66, as amended by this act, 46a-68, 46a-68c to 46a-68f, inclusive, or 46a-70 to 46a-78, inclusive, as amended by this act, subsection (a) of section 46a-80 or sections 46a-81b to 46a-81o, inclusive;

(9) “Employee” means any person employed by an employer but shall not include any individual employed by such individual’s parents, spouse or child, or in the domestic service of any person;

(10) “Employer” includes the state and all political subdivisions thereof and means any person or employer with three or more persons in such person’s or employer’s employ;

(11) “Employment agency” means any person undertaking with or without compensation to procure employees or opportunities to work;

(12) “Labor organization” means any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment;

(13) “Mental retardation” means mental retardation as defined in section 1-1g;

(14) “Person” means one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers and the state and all political subdivisions and agencies thereof;

(15) “Physically disabled” refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device;

(16) “Respondent” means any person alleged in a complaint filed pursuant to section 46a-82 to have committed a discriminatory practice;

(17) “Discrimination on the basis of sex” includes but is not limited to discrimination related to pregnancy, child-bearing capacity, sterilization, fertility or related medical conditions;

(18) “Discrimination on the basis of religious creed” includes but is not limited to discrimination related to all aspects of religious observances and practice as well as belief, unless an employer demonstrates that the employer is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business;

(19) “Learning disability” refers to an individual who exhibits a severe discrepancy between educational performance and measured intellectual ability and who exhibits a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in a diminished ability to listen, speak, read, write, spell or to do mathematical calculations;

(20) “Mental disability” refers to an individual who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders”; and

(21) “Gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.

Sec. 2. (NEW) (Effective October 1, 2011) As used in sections 4a-60, 8-169s, 8-265c, 8-294, 8-315, 10-15c, 10-153, 10a-6, 11-24b, 16-245r, 16-247r, 28-15, 31-22p, 31-57e, 32-204, 32-277, 38a-358, 42-125a, 42-125b, 52-571d and 53-37a of the general statutes, as amended by this act, and section 37 of this act, “gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.

Sec. 3. Subsection (a) of section 4a-60 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) Every contract to which the state or any political subdivision of the state other than a municipality is a party shall contain the following provisions:

(1) The contractor agrees and warrants that in the performance of the contract such contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such contractor that such disability prevents performance of the work involved, in any manner prohibited by the laws of the United States or of the state of Connecticut; and the contractor further agrees to take affirmative action to insure that applicants with job-related qualifications are employed and that employees are treated when employed without regard to their race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such contractor that such disability prevents performance of the work involved;

(2) The contractor agrees, in all solicitations or advertisements for employees placed by or on behalf of the contractor, to state that it is an “affirmative action-equal opportunity employer” in accordance with regulations adopted by the commission;

(3) The contractor agrees to provide each labor union or representative of workers with which such contractor has a collective bargaining agreement or other contract or understanding and each vendor with which such contractor has a contract or understanding, a notice to be provided by the commission advising the labor union or workers’ representative of the contractor’s commitments under this section, and to post copies of the notice in conspicuous places available to employees and applicants for employment;

(4) The contractor agrees to comply with each provision of this section and sections 46a-68e and 46a-68f and with each regulation or relevant order issued by said commission pursuant to sections 46a-56, 46a-68e and 46a-68f; and

(5) The contractor agrees to provide the Commission on Human Rights and Opportunities with such information requested by the commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the contractor as relate to the provisions of this section and section 46a-56.

Sec. 4. Subsection (c) of section 8-169s of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(c) The legislative body may, by resolution, vote to transfer the urban homesteading property with or without compensation to the applicant selected pursuant to subsection (b) of this section. Such transfer shall be made pursuant to a contract of sale and rehabilitation or construction which shall provide among other things that (1) the property transferred be rehabilitated or constructed predominantly for residential use and be brought into and maintained in conformity with applicable health, housing and building code standard; (2) the rehabilitation or construction shall commence and be completed within a period of time as determined by the urban homesteading agency; (3) prior to the issuance of a certificate of occupancy by the building official no transfer of the property or any interest therein, except a transfer to a bona fide mortgagee or similar lien holder, may be made by the homesteader without the approval of the urban homesteading agency, provided any such transfer may only be made for a consideration not in excess of the cost of the property to the homesteader together with the costs of any improvements made or construction thereon by the homesteader; (4) in the sale or rental of the property, or any portion of such property, no person shall be discriminated against because of such person’s race, color, religion, sex, gender identity or expression, or national origin; and (5) representatives of the urban homesteading agency, the municipality, and where state or federal assistance is involved, representatives of the federal and state governments, shall have access to the property during normal business hours for the purpose of inspecting compliance with the provisions of this subsection.

Sec. 5. Section 8-265c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

The authority shall require that occupancy of all housing financed or otherwise assisted under this chapter be open to all persons regardless of race, creed, color, national origin or ancestry, [or] sex or gender identity or expression and that the contractors and subcontractors engaged in the construction or rehabilitation of such housing shall take affirmative action to provide equal opportunity for employment without discrimination as to race, creed, color, national origin or ancestry, [or] sex or gender identity or expression.

Sec. 6. Subsection (c) of section 8-294 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(c) The legislative body may, by resolution, vote to transfer the urban rehabilitation property with or without compensation to the person selected pursuant to subsection (b) of this section. Such transfer shall be made pursuant to a contract of sale and rehabilitation which shall provide among other things that (1) the property transferred be rehabilitated predominantly for industrial or commercial use and be brought into and maintained in conformity with applicable health, housing and building code standards; (2) that the rehabilitation shall commence and be completed within a period of time as determined by the urban rehabilitation agency; (3) prior to the issuance of a certificate of occupancy by the building official, no transfer of the property or any interest therein, except a transfer to a bona fide mortgagee or similar lien holder, may be made by the rehabilitator without the approval of the urban rehabilitation agency, provided any such transfer may only be made for a consideration not in excess of the cost of the property to the rehabilitator together with the costs of any improvements made thereon by the rehabilitator; (4) in the sale or rental of the property, or any portion of such property, no person shall be discriminated against because of such person’s race, color, religion, sex, gender identity or expression or national origin; (5) representatives of the urban rehabilitation agency, representatives of the municipality, and if state or federal assistance is involved, representatives of the federal and state governments shall be allowed access to the property during normal business hours for the purpose of inspecting compliance with the provisions of this subsection.

Sec. 7. Section 8-315 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

The municipality shall take all necessary steps to insure that occupancy of all housing financed or otherwise assisted pursuant to this chapter be open to all persons regardless of race, creed, color, national origin or ancestry, sex, gender identity or expression, age or physical disability.

Sec. 8. Subsection (a) of section 10-15c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) The public schools shall be open to all children five years of age and over who reach age five on or before the first day of January of any school year, and each such child shall have, and shall be so advised by the appropriate school authorities, an equal opportunity to participate in the activities, programs and courses of study offered in such public schools, at such time as the child becomes eligible to participate in such activities, programs and courses of study, without discrimination on account of race, color, sex, gender identity or expression, religion, national origin or sexual orientation; provided boards of education may, by vote at a meeting duly called, admit to any school children under five years of age.

Sec. 9. Section 10-153 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

No local or regional board of education shall discriminate on the basis of sex, gender identity or expression or marital status in the employment of teachers in the public schools or in the determination of the compensation to be paid to such teachers.

Sec. 10. Subsection (b) of section 10a-6 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(b) Within the limits of authorized expenditures, the policies of the state system of higher education shall be consistent with the following goals: (1) To ensure that no qualified person be denied the opportunity for higher education on the basis of age, sex, gender identity or expression, ethnic background or social, physical or economic condition, (2) to protect academic freedom, (3) to provide opportunities for education and training related to the economic, cultural and educational development of the state, (4) to assure the fullest possible use of available resources in public and private institutions of higher education, (5) to maintain standards of quality ensuring a position of national leadership for state institutions of higher education, (6) to apply the resources of higher education to the problems of society, and (7) to foster flexibility in the policies and institutions of higher education to enable the system to respond to changes in the economy, society, technology and student interests. Said board shall review recent studies of the need for higher education services, with special attention to those completed pursuant to legislative action, and to meet such needs shall initiate additional programs or services through one or more of the constituent units.

Sec. 11. Subsection (a) of section 11-24b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) Each principal public library, as defined in section 11-24a, shall be eligible to receive a state grant in accordance with the provisions of subsections (b), (c) and (d) of this section provided the following requirements are met:

(1) An annual statistical report which includes certification that the grant, when received, shall be used for library purposes is filed with the State Library Board in such manner as the board may require. The report shall include information concerning local library governance, hours of service, type of facilities, library policies, resources, programs and services available, measurement of levels of services provided, personnel and fiscal information concerning library receipts and expenditures;

(2) Documents certifying the legal establishment of the principal public library in accordance with the provisions of section 11-20 are filed with the board;

(3) The library is a participating library in the Connecticard program established pursuant to section 11-31b;

(4) Except for the fiscal years ending June 30, 2010, and June 30, 2011, the principal public library shall not have had the amount of its annual tax levy or appropriation reduced to an amount which is less than the average amount levied or appropriated for the library for the three fiscal years immediately preceding the year of the grant, except that if the expenditures of the library in any one year in such three-year period are unusually high as compared with expenditures in the other two years, the library may request an exception to this requirement and the board, upon review of the expenditures for that year, may grant an exception;

(5) State grant funds shall be expended within two years of the date of receipt of such funds. If the funds are not expended in that period, the library shall submit a plan to the State Librarian for the expenditure of any unspent balance;

(6) Principal public libraries shall not charge individuals residing in the town in which the library is located or the town in which the contract library is located for borrowing and lending library materials, accessing information, advice and assistance and programs and services which promote literacy; and

(7) Principal public libraries shall provide equal access to library service for all individuals and shall not discriminate upon the basis of age, race, sex, gender identity or expression, religion, national origin, handicap or place of residency in the town in which the library is located or the town in which the contract library is located.

Sec. 12. Section 16-245r of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

No electric supplier, as defined in section 16-1, shall refuse to provide electric generation services to, or refuse to negotiate to provide such services to any customer because of age, race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, sexual orientation, lawful source of income, disability or familial status. No electric supplier shall decline to provide electric generation services to a customer for the sole reason that the customer is located in an economically distressed geographic area or the customer qualifies for hardship status under section 16-262c. No electric supplier shall terminate or refuse to reinstate electric generation services except in accordance with the provisions of this title.

Sec. 13. Section 16-247r of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

No telephone company or certified telecommunications provider, as defined in section 16-1, shall refuse to provide telecommunications services to, or refuse to negotiate to provide such services to any customer because of age, race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, sexual orientation, lawful source of income, disability or familial status. No telephone company or certified telecommunications provider shall decline to provide telecommunications services to a customer for the sole reason that the customer is located in an economically distressed geographic area or the customer qualifies for hardship status under section 16-262c. No telephone company or certified telecommunications provider shall terminate or refuse to reinstate telecommunications services except in accordance with the provisions of this title.

Sec. 14. Subsection (b) of section 28-15 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(b) No person shall discriminate on the basis of race, color, religious creed, sex, gender identity or expression, age, national origin, ancestry or economic status in carrying out any provision of this chapter or any federal major disaster or emergency assistance function in this state.

Sec. 15. Section 31-22p of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

The Labor Commissioner, with the advice and guidance of the council, shall formulate work training standards which will ensure necessary safeguards for the welfare of apprentices and a full craft experience in any skill, in order to provide equal opportunities to all, without regard to their race, color, religion, sex, gender identity or expression, age or national origin, and to provide training, employment and upgrading opportunities for disadvantaged workers to acquire a comprehensive skilled work experience and to extend the application of such standards of skill training by inclusion thereof in apprenticeship agreements, and shall bring together representatives of management and labor for the development of training programs and terms of apprenticeship incidental thereto and cooperate with state and federal agencies similarly interested in furtherance of training requirements in keeping with established and new processes of Connecticut industries. The Labor Commissioner shall publish information relating to existing and proposed work standards of apprenticeship, hold area conferences throughout the state for the purpose of promoting interest in skilled trades training and appoint such advisory committees as may be deemed necessary to evaluate the skilled manpower requirements of Connecticut in order to cope with any new technological changes in industry.

Sec. 16. Subsection (e) of section 31-57e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(e) The Employment Rights Code referred to under this section shall include the following provisions:

(1) A commercial enterprise subject to tribal jurisdiction shall not, except in the case of a bona fide occupational qualification or need, refuse to hire or employ or bar or discharge from employment any individual or discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, sex, gender identity or expression, marital status, national origin, ancestry, age, present or past history of mental disorder, mental retardation, sexual orientation, learning or physical disability, political activity, union activity or the exercise of rights protected by the United States Constitution. This subdivision shall not be construed to restrict the right of a tribe to give preference in hiring to members of the tribe.

(2) A commercial enterprise subject to tribal jurisdiction shall not deny any individual, including a representative of a labor organization, seeking to ensure compliance with this section, access to employees of the tribe’s commercial enterprise during nonwork time in nonwork areas. The tribe shall not permit any supervisor, manager or other agent of the tribe to restrict or otherwise interfere with such access.

(3) When a labor organization claims that it has been designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, the labor organization may apply to an arbitrator to verify the claim pursuant to subdivision (4) of this subsection. If the arbitrator verifies that the labor organization has been designated or selected as the bargaining representative by a majority of the employees in an appropriate unit, the tribe shall, upon request, recognize the labor organization as the exclusive bargaining agent and bargain in good faith with the labor organization in an effort to reach a collective bargaining agreement. However, the arbitrator shall disallow any claim by a labor organization which is dominated or controlled by the tribe.

(4) (A) Any individual or organization claiming to be injured by a violation of any provision of this subsection shall have the right to seek binding arbitration under the rules of the American Arbitration Association. Such individual or organization shall file a demand for arbitration with the tribe not later than one hundred eighty days after the employee or labor organization knows or should know of the tribe’s violation of any provision of this subsection. The demand shall state, in plain language, the facts giving rise to the demand.

(B) The demand for arbitration shall also be served upon the Connecticut office of the American Arbitration Association. Absent settlement, a hearing shall be held in accordance with the rules and procedures of the American Arbitration Association. The costs and fees of the arbitrator shall be shared equally by the tribe and the labor organization.

(C) The decision of the arbitrator shall be final and binding on both parties and shall be subject to judicial review and enforcement against all parties in the manner prescribed by chapter 909.

(5) A tribe shall not retaliate against any individual who exercises any right under the Employment Rights Code. Any individual or organization claiming to be injured by a violation of the provisions of this section shall have the right to seek binding arbitration pursuant to subdivision (4) of this subsection.

Sec. 17. Section 32-204 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

The general purpose of the authority shall be to stimulate new spending in Connecticut and to encourage the diversification of the state economy through the construction, operation, maintenance and marketing of a conference or exhibition facility that will create new jobs, add to the benefits of the hospitality industry, broaden the base of the tourism effort and stimulate substantial surrounding economic development and corresponding increased tax revenues to the state. The primary purpose of the authority shall be to attract and service large conventions, tradeshows, exhibitions and conferences, preferably those whose attendees are predominantly from out-of-state; the secondary purpose of the authority, at times when its primary purpose cannot be fulfilled, shall be to attract and service local consumer shows, exhibitions and events which generate less new spending in Connecticut. For these purposes, the authority shall have the following powers: (1) To have perpetual succession as a body corporate and to adopt procedures for the regulation of its affairs and the conduct of its business as provided in subsection (f) of section 32-203; to adopt a corporate seal and alter the same at its pleasure; and to maintain an office at such place or places within the state as it may designate; (2) to sue and be sued; to contract and be contracted with, provided, if management, operating, or promotional contracts or agreements or other contracts or agreements are entered into with nongovernmental parties with respect to property financed with the proceeds of obligations the interest on which is excluded from gross income for federal income taxation, the board of directors will ensure that such contracts or agreements are in compliance with the covenants of the authority upon which such tax exclusion is conditioned; (3) to acquire, by gift, purchase, condemnation or transfer, lands or rights-in-land in connection therewith and to sell, lease as lessee or as lessor, provided such activity is consistent with all applicable federal tax covenants of the authority, transfer or dispose of any property or interest therein acquired by it, at any time; and to receive and accept aid or contributions, from any source, of money, labor, property or other things of value, to be held, used and applied to carry out the purposes of sections 32-200 to 32-212, inclusive, subject to the conditions upon which such grants and contributions are made, including, but not limited to, gifts or grants from any department, agency or instrumentality of the United States or this state for any purpose consistent with said sections; (4) to formulate plans for, acquire, finance and develop, lease, purchase, construct, reconstruct, repair, improve, expand, extend, operate, maintain and market the project, provided such activities are consistent with all applicable federal tax covenants of the authority; (5) to fix and revise from time to time and to charge and collect fees, rents and other charges for the use, occupancy or operation of the project, and to establish and revise from time to time, regulations in respect of the use, operation and occupancy of any such project, provided such regulations are consistent with all applicable federal tax covenants of the authority; (6) to employ such assistants, agents and other employees as may be necessary or desirable to carry out its purposes and to fix their compensation; to establish and modify personnel procedures as may be necessary from time to time and to negotiate and enter into collective bargaining agreements with labor unions; (7) to engage architects, engineers, attorneys, accountants, consultants and such other independent professionals as may be necessary or desirable to carry out its purposes; to contract for construction, development, concessions and the procurement of goods and services and to establish and modify procurement procedures from time to time to implement the foregoing in accordance with the provisions of subsection (b) of this section; (8) to adopt procedures with respect to contractors and subcontractors engaged in the construction of the project which require such contractors or subcontractors (A) to take affirmative action to provide equal opportunity for employment without discrimination as to race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, mental retardation, mental disability or physical disability, including, but not limited to, blindness or deafness and (B) to ensure that the wages paid on an hourly basis to any mechanic, laborer or workman employed by such contractor or subcontractor with respect to the project shall be at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town and city of Stamford; (9) to engage in and contract for marketing and promotional activities to attract national, regional and local conventions, trade shows, exhibitions, banquets and other events in order to maximize the use of the project and to carry out the purposes of sections 32-200 to 32-212, inclusive; (10) to acquire, lease, hold and dispose of personal property for the purposes set forth in sections 32-200 to 32-212, inclusive; (11) to procure insurance against any liability or loss in connection with its property and other assets, in such amounts and from such insurers as it deems desirable and to procure insurance for employees; (12) to borrow money and to issue bonds, notes and other obligations of the authority to the extent permitted under sections 32-200 to 32-212, inclusive, to fund and refund the same and to provide for the rights of the holders thereof and to secure the same by pledge of assets, revenues, notes and state contract assistance as provided in said sections and such state taxes as the authority shall be entitled to receive pursuant to the provisions of said sections; (13) to invest any funds not needed for immediate use or disbursement in obligations issued or guaranteed by the United States of America or the state of Connecticut and in other obligations which are legal investments for savings banks in this state and in time deposits or certificates of deposit or other similar banking arrangements secured in such manner as the authority determines; (14) to do anything necessary and desirable, including executing reimbursement agreements or similar agreements in connection with credit facilities, including, but not limited to, letters of credit or policies of bond insurance, remarketing agreements and agreements for the purpose of moderating interest rate fluctuations, to render any bonds to be issued pursuant to sections 32-200 to 32-212, inclusive, more marketable; (15) to do all acts and things necessary or convenient to carry out the purposes of sections 32-200 to 32-212, inclusive, and the powers expressly granted by said sections.

Sec. 18. Section 32-277 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

A regional corporation shall not provide any financial assistance authorized by sections 32-271 to 32-284, inclusive, unless the following conditions are met:

(1) The applicant has demonstrated that there is little prospect of obtaining the conventional project financing requested from either private or public sources of funding within the region, and that there is little prospect of obtaining adequate project financing from private sources of capital, or in the case of a loan guarantee, that there is little prospect of obtaining project financing without the guarantee;

(2) There is a reasonable prospect of repayment;

(3) The project is located in the region represented by the regional corporation;

(4) The project will comply with any applicable environmental rules or regulations;

(5) The applicant has certified that it will not discriminate against any employee or any applicant for employment because of race, religion, color, national origin, sex, gender identity or expression or age;

(6) A staff member or a representative of the regional corporation acting in an official capacity has personally visited the project site and the applicant’s place of business; and

(7) Financial commitments or contingent financial commitments for the project have been obtained from other public and private sources.

Sec. 19. Section 38a-358 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

The declination, cancellation or nonrenewal of a policy for private passenger nonfleet automobile insurance is prohibited if the declination, cancellation or nonrenewal is based: (1) On the race, religion, nationality or ethnicity of the applicant or named insured; (2) solely on the lawful occupation or profession of the applicant or named insured, except that this provision shall not apply to any insurer which limits its market to one lawful occupation or profession or to several related lawful occupations or professions; (3) on the principal location of the insured motor vehicle unless such decision is for a business purpose which is not a mere pretext for unfair discrimination; (4) solely on the age, sex, gender identity or expression or marital status of an applicant or an insured, except that this subdivision shall not apply to an insurer in an insurer group if one or more other insurers in the group would not decline an application for essentially similar coverage based upon such reasons; (5) on the fact that the applicant or named insured previously obtained insurance coverage through a residual market; (6) on the fact that another insurer previously declined to insure the applicant or terminated an existing policy in which the applicant was the named insured; (7) the first or second accident within the current experience period in relation to which the applicant or insured was not convicted of a moving traffic violation and was not at fault; or (8) solely on information contained in an insured’s or applicant’s credit history or credit rating or solely on an applicant’s lack of credit history. For the purposes of subdivision (8) of this section, an insurer shall not be deemed to have declined, cancelled or nonrenewed a policy if coverage is available through an affiliated insurer.

Sec. 20. Section 42-125a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

It is the policy of the state of Connecticut to oppose restraints of trade and unfair trade practices in the form of discriminatory boycotts which are not specifically authorized by the law of the United States and which are fostered or imposed by foreign persons, foreign governments or international organizations against any domestic individual on the basis of race, color, creed, religion, sex, gender identity or expression, nationality or national origin. It is also the policy of the state to oppose any actions, including the formation or continuance of agreements, understandings or contractual arrangements, expressed or implied, which have the effect of furthering such discriminatory boycotts, in order that the peace, health, safety, prosperity and general welfare of all the inhabitants of the state may be protected and ensured. This chapter shall be deemed an exercise of the police power of the state for the protection of the people of this state and shall be administered and principally enforced by the Attorney General. The provisions of this chapter shall be construed liberally so as to effectuate this declaration of policy and the laws and Constitution of the United States, but nothing in this chapter shall be construed to infringe upon the right of the United States government to regulate interstate and foreign commerce.

Sec. 21. Subsection (c) of section 42-125b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(c) “Participating in a discriminatory boycott” means the entering into or performing of any agreement, understanding or contractual arrangement for economic benefit by any person with any foreign government, foreign person or international organization, which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by the foreign government, foreign person or international organization in order to restrict, condition, prohibit or interfere with any business relationship in this state on the basis of a domestic individual’s race, color, creed, religion, sex, gender identity or expression, nationality or national origin; provided, handling, altering or shipping goods or complying with the commercial laws of a foreign country, unless such laws require discrimination against a domestic individual on the basis of race, color, creed, religion, sex, gender identity or expression, nationality or national origin, shall not constitute a discriminatory boycott.

Sec. 22. Subsection (a) of section 46a-58 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, gender identity or expression, sexual orientation, blindness or physical disability.

Sec. 23. Subsection (a) of section 46a-59 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section for any association, board or other organization the principal purpose of which is the furtherance of the professional or occupational interests of its members, whose profession, trade or occupation requires a state license, to refuse to accept a person as a member of such association, board or organization because of his race, national origin, creed, sex, gender identity or expression or color.

Sec. 24. Subsection (a) of section 46a-60 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section:

(1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(2) For any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of such individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(3) For a labor organization, because of the race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification;

(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84;

(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so;

(6) For any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(7) For an employer, by the employer or the employer’s agent: (A) To terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus; (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position;

(8) For an employer, by the employer or the employer’s agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex or gender identity or expression. “Sexual harassment” shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment;

(9) For an employer, by the employer or the employer’s agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to request or require information from an employee, person seeking employment or member relating to the individual’s child-bearing age or plans, pregnancy, function of the individual’s reproductive system, use of birth control methods, or the individual’s familial responsibilities, unless such information is directly related to a bona fide occupational qualification or need, provided an employer, through a physician may request from an employee any such information which is directly related to workplace exposure to substances which may cause birth defects or constitute a hazard to an individual’s reproductive system or to a fetus if the employer first informs the employee of the hazards involved in exposure to such substances;

(10) For an employer, by the employer or the employer’s agent, after informing an employee, pursuant to subdivision (9) of this subsection, of a workplace exposure to substances which may cause birth defects or constitute a hazard to an employee’s reproductive system or to a fetus, to fail or refuse, upon the employee’s request, to take reasonable measures to protect the employee from the exposure or hazard identified, or to fail or refuse to inform the employee that the measures taken may be the subject of a complaint filed under the provisions of this chapter. Nothing in this subdivision is intended to prohibit an employer from taking reasonable measures to protect an employee from exposure to such substances. For the purpose of this subdivision, “reasonable measures” shall be those measures which are consistent with business necessity and are least disruptive of the terms and conditions of the employee’s employment;

(11) For an employer, by the employer or the employer’s agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, “genetic information” means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

Sec. 25. Subsection (a) of section 46a-64 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, mental retardation, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; (2) to discriminate, segregate or separate on account of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness or deafness; (3) for a place of public accommodation, resort or amusement to restrict or limit the right of a mother to breast-feed her child; (4) for a place of public accommodation, resort or amusement to fail or refuse to post a notice, in a conspicuous place, that any blind, deaf or mobility impaired person, accompanied by his guide dog wearing a harness or an orange-colored leash and collar, may enter such premises or facilities; or (5) to deny any blind, deaf or mobility impaired person or any person training a dog as a guide dog for a blind person or a dog to assist a deaf or mobility impaired person, accompanied by his guide dog or assistance dog, full and equal access to any place of public accommodation, resort or amusement. Any blind, deaf or mobility impaired person or any person training a dog as a guide dog for a blind person or a dog to assist a deaf or mobility impaired person may keep his guide dog or assistance dog with him at all times in such place of public accommodation, resort or amusement at no extra charge, provided the dog wears a harness or an orange-colored leash and collar and is in the direct custody of such person. The blind, deaf or mobility impaired person or person training a dog as a guide dog for a blind person or a dog to assist a deaf or mobility impaired person shall be liable for any damage done to the premises or facilities by his dog. For purposes of this subdivision, “guide dog” or “assistance dog” includes a dog being trained as a guide dog or assistance dog and “person training a dog as a guide dog for a blind person or a dog to assist a deaf or mobility impaired person” means a person who is employed by and authorized to engage in designated training activities by a guide dog organization or assistance dog organization that complies with the criteria for membership in a professional association of guide dog or assistance dog schools and who carries photographic identification indicating such employment and authorization.

Sec. 26. Subsection (a) of section 46a-64c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section:

(1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income or familial status.

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income or familial status.

(3) To make, print or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability, or an intention to make any such preference, limitation or discrimination.

(4) (A) To represent to any person because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available.

(B) It shall be a violation of this subdivision for any person to restrict or attempt to restrict the choices of any buyer or renter to purchase or rent a dwelling (i) to an area which is substantially populated, even if less than a majority, by persons of the same protected class as the buyer or renter, (ii) while such person is authorized to offer for sale or rent another dwelling which meets the housing criteria as expressed by the buyer or renter to such person and (iii) such other dwelling is in an area which is not substantially populated by persons of the same protected class as the buyer or renter. As used in this subdivision, “area” means municipality, neighborhood or other geographic subdivision which may include an apartment or condominium complex; and “protected class” means race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.

(5) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.

(6) (A) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a learning disability or physical or mental disability of: (i) Such buyer or renter; (ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available; or (iii) any person associated with such buyer or renter.

(B) To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a learning disability or physical or mental disability of: (i) Such person; or (ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available; or (iii) any person associated with such person.

(C) For purposes of this subdivision, discrimination includes: (i) A refusal to permit, at the expense of a person with a physical or mental disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted; (ii) a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; (iii) in connection with the design and construction of covered multifamily dwellings for the first occupancy after March 13, 1991, a failure to design and construct those dwellings in such manner that they comply with the requirements of Section 804(f) of the Fair Housing Act or the provisions of the state building code as adopted pursuant to the provisions of sections 29-269 and 29-273, whichever requires greater accommodation. “Covered multifamily dwellings” means buildings consisting of four or more units if such buildings have one or more elevators, and ground floor units in other buildings consisting of four or more units.

(7) For any person or other entity engaging in residential real-estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.

(8) To deny any person access to or membership or participation in any multiple-listing service, real estate brokers’ organization or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against him in the terms or conditions of such access, membership or participation, on account of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.

(9) To coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this section.

Sec. 27. Subsection (e) of section 46a-64c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(e) Nothing in this section prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.

Sec. 28. Subsection (a) of section 46a-66 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) It shall be a discriminatory practice in violation of this section for any creditor to discriminate on the basis of sex, gender identity or expression, age, race, color, religious creed, national origin, ancestry, marital status, mental retardation, learning disability, blindness or physical disability against any person eighteen years of age or over in any credit transaction.

Sec. 29. Subsection (a) of section 46a-70 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved.

Sec. 30. Subsection (a) of section 46a-71 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) All services of every state agency shall be performed without discrimination based upon race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness.

Sec. 31. Subsection (b) of section 46a-72 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(b) Any job request indicating an intention to exclude any person because of race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness shall be rejected, unless it is shown by such public or private employers that such disability prevents performance of the work involved.

Sec. 32. Subsection (a) of section 46a-73 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) No state department, board or agency may grant, deny or revoke the license or charter of any person on the grounds of race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness, unless it is shown by such state department, board or agency that such disability prevents performance of the work involved.

Sec. 33. Subsection (a) of section 46a-75 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) All educational, counseling, and vocational guidance programs and all apprenticeship and on-the-job training programs of state agencies, or in which state agencies participate, shall be open to all qualified persons, without regard to race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness.

Sec. 34. Subsection (a) of section 46a-76 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(a) Race, color, religious creed, sex, gender identity or expression, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness shall not be considered as limiting factors in state-administered programs involving the distribution of funds to qualify applicants for benefits authorized by law.

Sec. 35. Subsections (b) and (c) of section 52-571d of the general statutes are repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

(b) No golf country club may deny membership in such club to any person on account of race, religion, color, national origin, ancestry, sex, gender identity or expression, marital status or sexual orientation.

(c) All classes of membership in a golf country club shall be available without regard to race, religion, color, national origin, ancestry, sex, gender identity or expression, marital status or sexual orientation.

Sec. 36. Section 53-37a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011):

Any person who, with the intent to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, gender identity or expression, sexual orientation, blindness or physical disability, violates the provisions of section 46a-58, as amended by this act, while wearing a mask, hood or other device designed to conceal the identity of such person shall be guilty of a class D felony.

Sec. 37. (NEW) (Effective October 1, 2011) The provisions of subsection (a) of section 4a-60, subsection (c) of section 8-169s, section 8-265c, subsection (c) of section 8-294, section 8-315, subsection (a) of section 10-15c, section 10-153, subsection (b) of section 10a-6, subsection (a) of section 11-24b, sections 16-245r and 16-247r, subsection (b) of section 28-15, section 31-22p, subsection (e) of section 31-57e, sections 32-204, 32-277, 38a-358 and 42-125a, subsection (c) of section 42-125b, subsection (a) of section 46a-58, subsection (a) of section 46a-59, subsection (a) of section 46a-60, subsection (a) of section 46a-64, subsections (a) and (e) of section 46a-64c, subsection (a) of section 46a-66, subsection (a) of section 46a-70, subsection (a) of section 46a-71, subsection (b) of section 46a-72, subsection (a) of section 46a-73, subsection (a) of section 46a-75, subsection (a) of section 46a-76, subsections (b) and (c) of section 52-571d and section 53-37a of the general statutes, as amended by this act, that prohibit discrimination on the basis of gender identity or expression shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

 



[1] The Equal Access Act, 20 U.S.C. §§ 4071 – 4073 (2010).

[2] 20 U.S.C. § 4071(a) (2010).

[3] See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969).

[4] See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226, 236 (1990) (“Thus, even if a public secondary school allows only one ‘noncurriculum related student group’ to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time.”).

[5] Id. at 247 (holding that to deny the school’s Bible club official recognition, which included access to the school newspaper, bulletin boards, and public address system, was to deny it “equal access”); Straights & Gays for Equality  v. Osseo Area Schools – District No. 279, 540 F.3d 911, 914 (8th Cir. 2008) (holding that the school district violated the Act by providing noncurricular groups with greater access to communication avenues than it provided to SAGE); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp. 2d 667, 683 (E.D. Ky. 2003).

[6] 20 U.S.C. § 4072(4) (2010).

[7] See Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 222 (3d Cir. 2003) (“Simply because the period may fall within the more general parameters of the school day does not indicate that all time within those parameters necessarily constitutes actual classroom instruction.”); Ceniceros ex rel. Risser v. Bd. of Trustees, 106 F.3d 878, 880 (9th Cir. 1997) (holding that the plain meaning of the term “noninstructional time” under the Act includes meetings held during lunch time).

[8] Mergens, 496 U.S. at 238-40.

[9] Id. at 239-40.

[10] Id. at 240.

[11] 20 U.S.C. § 4071(c)(5) (2010).

[12] 20 U.S.C. § 4071(c)(1) (2010) (providing that a school shall be deemed to offer a fair opportunity to students who wish to conduct a meeting if the school uniformly provides that “the meeting is voluntary and student-initiated”).

[13] Id. at § 4072(2) (2010).

[14] 20 U.S.C. § 4071(d)(5), (c)(4), (f) (2010).

[15] See, e.g., Boyd County High Sch. Gay Straight Alliance, 258 F. Supp. 2d at 690 (“the Equal Access Act permits [a school] to prohibit Plaintiffs from meeting on equal terms with the noncurriculum-related student groups that have been permitted to meet… only upon a showing that Plaintiffs’ own disruptive activities have interfered with [the school’s] ability to maintain order and discipline.”).

[16] See Mergens, 496 U.S. at 250.

[17] Id. at 244-245 (quoting Mergens v. Bd. of Educ., 867 F.2d 1076, 1078 (8th Cir. 1989)).

[18] Id. at 246.

[19] Id. at 244 (“To define ‘curriculum related’ in a way that results in almost no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act merely hortatory.  See 130 Cong. Rec. 19222 (1984) (statement of Sen. Leahy) (‘[A] limited open forum should be triggered by what a school does, not by what it says’).”).

[20] 20 U.S.C. § 4071(f) (2010) (stating that “nothing in [the Act] shall be construed to limit the authority of the school, its agents, or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary”).

[21] See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (holding that it is appropriate for educators to protect students from sexually explicit, indecent, or lewd speech).

[22] See Gay-Straight Alliance of Okeechobee High Sch. v. Sch. Bd., 483 F. Supp. 2d 1224, 1229 (S.D. Fl. 2007) (rejecting school district’s assumption that a gay-straight alliance is a “sex-based” club, after examining club’s stated purposes of promoting tolerance and providing a safe environment for students, and concluding that school district failed to establish that it would be involved in “accessing or sharing with other students obscene or explicit sexual material; rather, this appears to be an assumption or conclusion derived from the name of the club”).

[23] 20 U.S.C. § 4071(c)(5) (2010).

[24] See Colin  v. Orange Unified Sch. Dist., 83 F. Supp. 2d at 1146 (C.D. Cal. 2000) (holding that sharing a name suggested by national organization and shared with other student clubs elsewhere does not approach level of control necessary to exempt group from Act’s protections, and therefore holding that school board violated Act when it excluded gay-straight alliance on basis of supposed association with “nonschool persons” but failed to apply restriction uniformly to groups such as Red Cross and Key Club, whose names similarly suggested affiliations with national organizations).

[25] Id.

[26] See, e.g., Colin, 83 F. Supp. 2d at 1147-48.

 

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Letter from Secretary Duncan re: Technical Assistance on Addressing Bullying Through Policy
Jul 5th, 2011 by

Subject: Letter from Secretary Duncan re: Technical Assistance on Addressing Bullying Through Policy

 December 16, 2010

 Dear Governors, Chief State School Officers, and State Board of Education Leaders:

 Recent incidents of bullying have demonstrated its potentially devastating effects on students, schools, and communities and have spurred a sense of urgency among State and local educators and policymakers to take action to combat bullying.  The U.S. Department of Education (Department) shares this sense of urgency and is taking steps to help school officials effectively reduce bullying in our Nation’s schools.  Bullying can be extremely damaging to students, can disrupt an environment conducive to learning, and should not be tolerated in our schools.

 

Along with our partners from the Departments of Health and Human Services, Agriculture, Interior, Defense, and Justice, we are in the process of developing key strategies to support and encourage efforts to prevent bullying in our schools.  Our ongoing work has included the first-ever Federal Bullying Prevention Summit in August, the launch of our interagency bullying-resource Web site, http://www.bullyinginfo.org, the continued support and growth of the Stop Bullying Now! campaign, and the development of research and guidance on bullying prevention.  The Department also awarded eleven Safe and Supportive Schools Grants to states to develop measurement systems to assess schools’ conditions for learning, including the prevalence of bullying, and to implement programs to improve overall school safety.

 

Recent guidance includes a Dear Colleague Letter issued on October 26 by the Department’s Office for Civil Rights (OCR) that explains how, under certain circumstances, bullying may trigger legal responsibilities for schools under the civil rights laws enforced by OCR and the Department of Justice that prohibit discrimination and harassment based on race, color, national origin, sex, disability, and religion.[1]  Schools must protect students from bullying and harassment on these bases, in addition to any obligations under state and local law.

 

Numerous stakeholders, including the National Conference of State Legislatures, the National Association of School Boards, the Leadership Conference on Civil and Human Rights, individual State legislators, and local school districts, among others, have asked the Department to provide assistance in crafting effective anti-bullying laws and policies.  In response, the Department has prepared the attached summary of examples that illustrate how some states have tried to prevent and reduce bullying through legislation.  States and local school districts can use these examples as technical assistance in drafting effective anti-bullying laws, regulations, and policies.  The Department will also be working to produce additional helpful resource information.

 

Forty-five states have already passed laws addressing bullying or harassment in school.  Ultimately State officials will determine whether new or revised legislation and policies should be introduced to update, improve, or add bullying prevention provisions.  It is our hope that this information will be of assistance to State officials and other interested stakeholders.

Though laws are only a part of the cure for bullying, the adoption, publication, and enforcement of a clear and effective anti-bullying policy sends a message that all incidents of bullying must be addressed immediately and effectively, and that such behavior will not be tolerated.  State laws, and their related district- and school-level policies, cannot work in isolation, however.  When responding to bullying incidents, schools and districts should remember that maintenance of a safe and equitable learning environment for all students, including both victims and perpetrators of bullying, often requires a more comprehensive approach.

 

If you wish to receive further technical assistance on addressing bullying, please do not hesitate to contact the Department’s Office of Safe and Drug-Free Schools by visiting its Web site at http://www2.ed.gov/about/offices/list/osdfs/index.html or by calling at 202-245-7896.

 

I look forward to continuing our work together to ensure equal access to education and to promote safe and respectful schools for all of our students.

 

Sincerely,

 

/s/

Arne Duncan

[1] The Federal civil rights laws enforced by the Department include Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex; and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability.  OCR’s Dear Colleague letter on discriminatory harassment under these statutes is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html.  The Department of Justice has jurisdiction to enforce Title IV of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, sex, religion, or national origin.

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Oct 26, 2010 Dear Colleague Letter –
Jul 5th, 2011 by

From the Oct 26, 2010 Dear Colleague Letter – http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html

 

These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs). 

 

>>>>>> Quote from the letter:

•Over the course of a school year, school employees at a junior high school received reports of several incidents of anti-Semitic conduct at the school.  Anti-Semitic graffiti, including swastikas, was scrawled on the stalls of the school bathroom.  When custodians discovered the graffiti and reported it to school administrators, the administrators ordered the graffiti removed but took no further action.  At the same school, a teacher caught two ninth-graders trying to force two seventh-graders to give them money.  The ninth-graders told the seventh-graders, “You Jews have all of the money, give us some.”  When school administrators investigated the incident, they determined that the seventh-graders were not actually Jewish.  The school suspended the perpetrators for a week because of the serious nature of their misconduct.  After that incident, younger Jewish students started avoiding the school library and computer lab because they were located in the corridor housing the lockers of the ninth-graders.  At the same school, a group of eighth-grade students repeatedly called a Jewish student “Drew the dirty Jew.”  The responsible eighth-graders were reprimanded for teasing the Jewish student. 

The school administrators failed to recognize that anti-Semitic harassment can trigger responsibilities under Title VI.  While Title VI does not cover discrimination based solely on religion,14 groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith.  These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs).  Thus, harassment against students who are members of any religious group triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.  A school also has responsibilities under Title VI when its students are harassed based on their actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity.15

In this example, school administrators should have recognized that the harassment was based on the students’ actual or perceived shared ancestry or ethnic identity as Jews (rather than on the students’ religious practices).  The school was not relieved of its responsibilities under Title VI because the targets of one of the incidents were not actually Jewish.  The harassment was still based on the perceived ancestry or ethnic characteristics of the targeted students.  Furthermore, the harassment negatively affected the ability and willingness of Jewish students to participate fully in the school’s

 

>>> end quote >>>>>>>>>

 

Race and National Origin Discrimination: Overview of the Law – http://www2.ed.gov/policy/rights/guid/ocr/raceoverview.html

 

 

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in programs or activities receiving federal financial assistance. All federal agencies that provided grants of assistance are required to enforce the Title VI regulation.

 

The U.S. Department of Education gives grants of financial assistance to schools and colleges and to certain other entities, including vocational rehabilitation programs. The Title VI regulation describes the conduct that violates Title VI. Examples of discrimination covered by Title VI include racial harassment, school segregation, and denial of language services to national-origin-minority students who are limited in their English. The U.S. Department of Education Title VI regulation is enforced by the Department’s Office for Civil Rights and is in the Code of Federal Regulations at 34 CFR 100.

 

The Title VI regulation prohibits retaliation for filing an OCR complaint or for advocacy for a right protected by Title VI. Title VI also prohibits employment discrimination, but the protection against employment discrimination under Title VI is limited. As a result, most complaints OCR receives raising race, color, or national-origin discrimination in employment are referred to the Equal Employment Opportunity Commission.

 

Virtually all public school districts are covered by Title VI because they receive some federal financial assistance. Public colleges and universities generally receive federal financial assistance, and most private colleges and universities receive such assistance. There are some private colleges that do not receive any federal assistance, and Title VI does not apply to them.

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Dear Colleague Letter – Bullying
Jul 1st, 2011 by

Dear Colleague Letter

OFFICE OF THE ASSISTANT SECRETARY
Page 1
October 26, 2010

Dear Colleague:

In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential. The movement to adopt anti-bullying policies reflects schools’ appreciation of their important responsibility to maintain a safe learning environment for all students. I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR). As discussed in more detail below, by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.

The statutes that OCR enforces include Title VI of the Civil Rights Act of 19641 (Title VI), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 19722 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 19733 (Section 504); and Title II of the Americans with Disabilities Act of 19904 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability.5 School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.6 School personnel who understand their legal obligations to address harassment under these laws are in the best position to prevent it from occurring and to respond appropriately when it does. Although this letter focuses on the elementary and secondary school context, the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by OCR.

Some school anti-bullying policies already may list classes or traits on which bases bullying or harassment is specifically prohibited. Indeed, many schools have adopted anti-bullying policies that go beyond prohibiting bullying on the basis of traits expressly protected by the federal civil

 
1 42 U.S.C. § 2000d et seq.
2 20 U.S.C. § 1681 et seq.
3 29 U.S.C. § 794.
4 42 U.S.C. § 12131 et seq.
5 OCR also enforces the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., and the Boy Scouts of America Equal Access Act, 20 U.S.C. § 7905. This letter does not specifically address those statutes.
6 The Department’s regulations implementing these statutes are in 34 C.F.R. parts 100, 104, and 106. Under these federal civil rights laws and regulations, students are protected from harassment by school employees, other students, and third parties. This guidance focuses on peer harassment, and articulates the legal standards that apply in administrative enforcement and in court cases where plaintiffs are seeking injunctive relief.
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rights laws enforced by OCR—race, color, national origin, sex, and disability—to include such bases as sexual orientation and religion.  While this letter concerns your legal obligations under the laws enforced by OCR, other federal, state, and local laws impose additional obligations on schools.7  And, of course, even when bullying or harassment is not a civil rights violation, schools should still seek to prevent it in order to protect students from the physical and emotional harms that it may cause.  

Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating.  Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.  Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.  When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces.8

A school is responsible for addressing harassment incidents about which it knows or reasonably should have known.9   In some situations, harassment may be in plain sight, widespread, or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas.  In these cases, the obvious signs of the harassment are sufficient to put the school on notice.  In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.  In all cases, schools should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.10 

When responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred.  The specific steps in a school’s investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors. In all cases, however, the inquiry should be prompt, thorough, and impartial. 
If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile

 
7 For instance, the U.S. Department of Justice (DOJ) has jurisdiction over Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c (Title IV), which prohibits discrimination on the basis of race, color, sex, religion, or national origin by public elementary and secondary schools and public institutions of higher learning.  State laws also provide additional civil rights protections, so districts should review these statutes to determine what protections they afford (e.g., some state laws specifically prohibit discrimination on the basis of sexual orientation).
8 Some conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression.  For more information on the First Amendment’s application to harassment, see the discussions in OCR’s Dear Colleague Letter: First Amendment (July 28, 2003), available at http://www.ed.gov/about/offices/list/ocr/firstamend.html, and OCR’s Revised Sexual Harassment Guidance:  Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001) (Sexual Harassment Guidance), available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.
9 A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment.  For a discussion of what a “responsible employee” is, see OCR’s Sexual Harassment Guidance.
10 Districts must adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex and disability discrimination complaints, and must notify students, parents, employees, applicants, and other interested parties that the district does not discriminate on the basis of sex or disability.  See 28 C.F.R. § 35.106; 28 C.F.R. § 35.107(b); 34 C.F.R. § 104.7(b); 34 C.F.R. § 104.8; 34 C.F.R. § 106.8(b); 34 C.F.R. § 106.9.
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environment and its effects, and prevent the harassment from recurring.  These duties are a school’s responsibility even if the misconduct also is covered by an anti-bullying policy, and regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

Appropriate steps to end harassment may include separating the accused harasser and the target, providing counseling for the target and/or harasser, or taking disciplinary action against the harasser.  These steps should not penalize the student who was harassed.  For example, any separation of the target from an alleged harasser should be designed to minimize the burden on the target’s educational program (e.g., not requiring the target to change his or her class schedule). 

In addition, depending on the extent of the harassment, the school may need to provide training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and know how to respond.  A school also may be required to provide additional services to the student who was harassed in order to address the effects of the harassment, particularly if the school initially delays in responding or responds inappropriately or inadequately to information about harassment.  An effective response also may need to include the issuance of new policies against harassment and new procedures by which students, parents, and employees may report allegations of harassment (or wide dissemination of existing policies and procedures), as well as wide distribution of the contact information for the district’s Title IX and Section 504/Title II coordinators.11 

Finally, a school should take steps to stop further harassment and prevent any retaliation against the person who made the complaint (or was the subject of the harassment) or against those who provided information as witnesses.  At a minimum, the school’s responsibilities include making sure that the harassed students and their families know how to report any subsequent problems, conducting follow-up inquiries to see if there have been any new incidents or any instances of retaliation, and responding promptly and appropriately to address continuing or new problems. 

When responding to incidents of misconduct, schools should keep in mind the following:

The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond.  Rather, the nature of the conduct itself must be assessed for civil rights implications.  So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR.
When the behavior implicates the civil rights laws, school administrators should look beyond simply disciplining the perpetrators.  While disciplining the perpetrators is likely a necessary step, it often is insufficient.  A school’s responsibility is to eliminate the
11 Districts must designate persons responsible for coordinating compliance with Title IX, Section 504, and Title II, including the investigation of any complaints of sexual, gender-based, or disability harassment.  See 28 C.F.R. § 35.107(a); 34 C.F.R. § 104.7(a); 34 C.F.R. § 106.8(a).
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hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur.  Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying.
Below, I provide hypothetical examples of how a school’s failure to recognize student misconduct as discriminatory harassment violates students’ civil rights.12  In each of the examples, the school was on notice of the harassment because either the school or a responsible employee knew or should have known of misconduct that constituted harassment.  The examples describe how the school should have responded in each circumstance.

Title VI:  Race, Color, or National Origin Harassment

Some students anonymously inserted offensive notes into African-American students’ lockers and notebooks, used racial slurs, and threatened African-American students who tried to sit near them in the cafeteria.  Some African-American students told school officials that they did not feel safe at school.  The school investigated and responded to individual instances of misconduct by assigning detention to the few student perpetrators it could identify.  However, racial tensions in the school continued to escalate to the point that several fights broke out between the school’s racial groups. 
In this example, school officials failed to acknowledge the pattern of harassment as indicative of a racially hostile environment in violation of Title VI.  Misconduct need not be directed at a particular student to constitute discriminatory harassment and foster a racially hostile environment.  Here, the harassing conduct included overtly racist behavior (e.g., racial slurs) and also targeted students on the basis of their race (e.g., notes directed at African-American students).  The nature of the harassment, the number of incidents, and the students’ safety concerns demonstrate that there was a racially hostile environment that interfered with the students’ ability to participate in the school’s education programs and activities. 
Had the school recognized that a racially hostile environment had been created, it would have realized that it needed to do more than just discipline the few individuals whom it could identify as having been involved.  By failing to acknowledge the racially hostile environment, the school failed to meet its obligation to implement a more systemic response to address the unique effect that the misconduct had on the school climate.  A more effective response would have included, in addition to punishing the perpetrators, such steps as reaffirming the school’s policy against discrimination (including racial harassment), publicizing the means to report allegations of racial harassment, training faculty on constructive responses to racial conflict, hosting class discussions about racial harassment and sensitivity to students of other races, and conducting outreach to involve parents and students in an effort to identify problems and improve the school climate.  Finally, had school officials responded appropriately
12 Each of these hypothetical examples contains elements taken from actual cases.
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and aggressively to the racial harassment when they first became aware of it, the school might have prevented the escalation of violence that occurred.13
Over the course of a school year, school employees at a junior high school received reports of several incidents of anti-Semitic conduct at the school.  Anti-Semitic graffiti, including swastikas, was scrawled on the stalls of the school bathroom.  When custodians discovered the graffiti and reported it to school administrators, the administrators ordered the graffiti removed but took no further action.  At the same school, a teacher caught two ninth-graders trying to force two seventh-graders to give them money.  The ninth-graders told the seventh-graders, “You Jews have all of the money, give us some.”  When school administrators investigated the incident, they determined that the seventh-graders were not actually Jewish.  The school suspended the perpetrators for a week because of the serious nature of their misconduct.  After that incident, younger Jewish students started avoiding the school library and computer lab because they were located in the corridor housing the lockers of the ninth-graders.  At the same school, a group of eighth-grade students repeatedly called a Jewish student “Drew the dirty Jew.”  The responsible eighth-graders were reprimanded for teasing the Jewish student. 
The school administrators failed to recognize that anti-Semitic harassment can trigger responsibilities under Title VI.  While Title VI does not cover discrimination based solely on religion,14 groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith.  These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs).  Thus, harassment against students who are members of any religious group triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.  A school also has responsibilities under Title VI when its students are harassed based on their actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity.15
In this example, school administrators should have recognized that the harassment was based on the students’ actual or perceived shared ancestry or ethnic identity as Jews (rather than on the students’ religious practices).  The school was not relieved of its responsibilities under Title VI because the targets of one of the incidents were not actually Jewish.  The harassment was still based on the perceived ancestry or ethnic characteristics of the targeted students.  Furthermore, the harassment negatively affected the ability and willingness of Jewish students to participate fully in the school’s
13 More information about the applicable legal standards and OCR’s approach to investigating allegations of harassment on the basis of race, color, or national origin is included in Racial Incidents and Harassment Against Students at Educational Institutions:  Investigative Guidance, 59 Fed. Reg. 11,448 (Mar. 10, 1994), available at http://www.ed.gov/about/offices/list/ocr/docs/race394.html
14 As noted in footnote seven, DOJ has the authority to remedy discrimination based solely on religion under Title IV.  
15 More information about the applicable legal standards and OCR’s approach to investigating complaints of discrimination against members of religious groups is included in OCR’s Dear Colleague Letter:  Title VI and Title IX Religious Discrimination in Schools and Colleges (Sept. 13, 2004), available at http://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html.
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education programs and activities (e.g., by causing some Jewish students to avoid the library and computer lab).  Therefore, although the discipline that the school imposed on the perpetrators was an important part of the school’s response, discipline alone was likely insufficient to remedy a hostile environment.  Similarly, removing the graffiti, while a necessary and important step, did not fully satisfy the school’s responsibilities.  As discussed above, misconduct that is not directed at a particular student, like the graffiti in the bathroom, can still constitute discriminatory harassment and foster a hostile environment.  Finally, the fact that school officials considered one of the incidents “teasing” is irrelevant for determining whether it contributed to a hostile environment.
Because the school failed to recognize that the incidents created a hostile environment, it addressed each only in isolation, and therefore failed to take prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence.  In addition to disciplining the perpetrators, remedial steps could have included counseling the perpetrators about the hurtful effect of their conduct, publicly labeling the incidents as anti-Semitic, reaffirming the school’s policy against discrimination, and publicizing the means by which students may report harassment.  Providing teachers with training to recognize and address anti-Semitic incidents also would have increased the effectiveness of the school’s response.  The school could also have created an age-appropriate program to educate its students about the history and dangers of anti-Semitism, and could have conducted outreach to involve parents and community groups in preventing future anti-Semitic harassment.
Title IX:  Sexual Harassment

Shortly after enrolling at a new high school, a female student had a brief romance with another student.  After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e-mails.  One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience.  They also noticed the new student’s anxiety and declining class participation.  The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers. 
Sexual harassment is unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature.  Thus, sexual harassment prohibited by Title IX can include conduct such as touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Web sites of a sexual nature. 

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In this example, the school employees failed to recognize that the “hazing” constituted sexual harassment.  The school did not comply with its Title IX obligations when it failed to investigate or remedy the sexual harassment.  The conduct was clearly unwelcome, sexual (e.g., sexual rumors and name calling), and sufficiently serious that it limited the student’s ability to participate in and benefit from the school’s education program (e.g., anxiety and declining class participation). 
The school should have trained its employees on the type of misconduct that constitutes sexual harassment.  The school also should have made clear to its employees that they could not require the student to confront her harassers.  Schools may use informal mechanisms for addressing harassment, but only if the parties agree to do so on a voluntary basis.  Had the school addressed the harassment consistent with Title IX, the school would have, for example, conducted a thorough investigation and taken interim measures to separate the student from the accused harassers.  An effective response also might have included training students and employees on the school’s policies related to harassment, instituting new procedures by which employees should report allegations of harassment, and more widely distributing the contact information for the district’s Title IX coordinator.  The school also might have offered the targeted student tutoring, other academic assistance, or counseling as necessary to remedy the effects of the harassment.16 
Title IX:  Gender-Based Harassment

Over the course of a school year, a gay high school student was called names (including anti-gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices).  As a result, the student dropped out of the drama club to avoid further harassment.  Based on the student’s self-identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX.  The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti-bullying policy.  The reprimands of the identified perpetrators stopped the harassment by those individuals.  It did not, however, stop others from undertaking similar harassment of the student.  
As noted in the example, the school failed to recognize the pattern of misconduct as a form of sex discrimination under Title IX.  Title IX prohibits harassment of both male and female students regardless of the sex of the harasser—i.e., even if the harasser and target are members of the same sex.  It also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping.  Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their
16 More information about the applicable legal standards and OCR’s approach to investigating allegations of sexual harassment is included in OCR’s Sexual Harassment Guidance, available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.
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sex, or for failing to conform to stereotypical notions of masculinity and femininity.  Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target. 
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.  When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX.  The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment.  In this example, the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act.  The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club).  Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.
In this example, the school had an obligation to take immediate and effective action to eliminate the hostile environment.  By responding to individual incidents of misconduct on an ad hoc basis only, the school failed to confront and prevent a hostile environment from continuing.  Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment.  For example, this approach would have included a more comprehensive response to the situation that involved notice to the student’s teachers so that they could ensure the student was not subjected to any further harassment, more aggressive monitoring by staff of the places where harassment occurred, increased training on the scope of the school’s harassment and discrimination policies, notice to the target and harassers of available counseling services and resources, and educating the entire school community on civil rights and expectations of tolerance, specifically as they apply to gender stereotypes.  The school also should have taken steps to clearly communicate the message that the school does not tolerate harassment and will be responsive to any information about such conduct.17 
Section 504 and Title II:  Disability Harassment

Several classmates repeatedly called a student with a learning disability “stupid,” “idiot,” and “retard” while in school and on the school bus.  On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage.  The student complained to his teachers and guidance counselor that he was continually being taunted and teased.  School officials offered him counseling services and a
17 Guidance on gender-based harassment is also included in OCR’s Sexual Harassment Guidance, available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.
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psychiatric evaluation, but did not discipline the offending students.  As a result, the harassment continued.  The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment.
In this example, the school failed to recognize the misconduct as disability harassment under Section 504 and Title II.  The harassing conduct included behavior based on the student’s disability, and limited the student’s ability to benefit fully from the school’s education program (e.g., absenteeism).  In failing to investigate and remedy the misconduct, the school did not comply with its obligations under Section 504 and Title II.
Counseling may be a helpful component of a remedy for harassment.  In this example, however, since the school failed to recognize the behavior as disability harassment, the school did not adopt a comprehensive approach to eliminating the hostile environment.  Such steps should have at least included disciplinary action against the harassers, consultation with the district’s Section 504/Title II coordinator to ensure a comprehensive and effective response, special training for staff on recognizing and effectively responding to harassment of students with disabilities, and monitoring to ensure that the harassment did not resume. 18
I encourage you to reevaluate the policies and practices your school uses to address bullying19 and harassment to ensure that they comply with the mandates of the federal civil rights laws.  For your convenience, the following is a list of online resources that further discuss the obligations of districts to respond to harassment prohibited under the federal antidiscrimination laws enforced by OCR:

Sexual Harassment:  It’s Not Academic (Revised 2008):
http://www.ed.gov/about/offices/list/ocr/docs/ocrshpam.html
Dear Colleague Letter:  Sexual Harassment Issues (2006):
http://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html
Dear Colleague Letter:  Religious Discrimination (2004):
http://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html
Dear Colleague Letter:  First Amendment (2003):
http://www.ed.gov/about/offices/list/ocr/firstamend.html
18 More information about the applicable legal standards and OCR’s approach to investigating allegations of disability harassment is included in OCR’s Dear Colleague Letter:  Prohibited Disability Harassment (July 25, 2000), available at http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.
19 For resources on preventing and addressing bullying, please visit http://www.bullyinginfo.org, a Web site established by a federal Interagency Working Group on Youth Programs.  For information on the Department’s bullying prevention resources, please visit the Office of Safe and Drug-Free Schools’ Web site at http://www.ed.gov/offices/OESE/SDFS.  For information on regional Equity Assistance Centers that assist schools in developing and implementing policies and practices to address issues regarding race, sex, or national origin discrimination, please visit http://www.ed.gov/programs/equitycenters.
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Sexual Harassment Guidance (Revised 2001): http://www.ed.gov/about/offices/list/ocr/docs/shguide.html
Dear Colleague Letter: Prohibited Disability Harassment (2000): http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html
Racial Incidents and Harassment Against Students (1994): http://www.ed.gov/about/offices/list/ocr/docs/race394.html
Please also note that OCR has added new data items to be collected through its Civil Rights Data Collection (CRDC), which surveys school districts in a variety of areas related to civil rights in education. The CRDC now requires districts to collect and report information on allegations of harassment, policies regarding harassment, and discipline imposed for harassment. In 2009-10, the CRDC covered nearly 7,000 school districts, including all districts with more than 3,000 students. For more information about the CRDC data items, please visit http://www2.ed.gov/about/offices/list/ocr/whatsnew.html.

OCR is committed to working with schools, students, students’ families, community and advocacy organizations, and other interested parties to ensure that students are not subjected to harassment. Please do not hesitate to contact OCR if we can provide assistance in your efforts to address harassment or if you have other civil rights concerns.

For the OCR regional office serving your state, please visit: http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm, or call OCR’s Customer Service Team at 1-800-421-3481.

I look forward to continuing our work together to ensure equal access to education, and to promote safe and respectful school climates for America’s students.

  Sincerely,
  /s/   
  Russlynn Ali
  Assistant Secretary for Civil Rights

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