Anti-Discrimination and Equal Employment Opportunity Policy
Policy Statement
New York State Education Department (NYSED) prohibits discrimination against any person because of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status or status as a domestic violence survivor and any other characteristics protected by law, as well as retaliation for opposing practices that an individual reasonably believes are in violation of this policy.
This Policy applies to applicants, interns, employees, and participants. NYSED prohibits discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
NYSED employees must not engage in discrimination, harassment or retaliation as described below. Violations of this Policy may result in disciplinary action. A victim of harassment does not have to be the person harassed but can be anyone affected by the offensive conduct.
The Office of Diversity & Access (ODA) is responsible for implementing this Policy, and for the investigation and resolution of all complaints of discrimination and retaliation.
Complaint Procedures
ODA is responsible for reviewing and investigating complaints and reports of violations of this Policy in accordance with New York State Human Rights Law, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, 29 CFR Part 38.41(c) regulations and other applicable laws.
How to File a Complaint
Any individual who has been subjected to, or has witnessed a violation of this Policy, should immediately report that violation to ODA or their supervisor if feasible. Complaints are not required to be in writing. However, it is strongly recommended that you complete the Discrimination Complaint Form and submit to diversity@nysed.gov. If you have questions or concerns with how to report, you may also contact ODA at 518-474-5215. Applicants or participants who have been subjected to a violation of this Policy should immediately report that violation to ODA.
To report a Complaint under Title IX please contact NYSED’s designated Title IX Coordinator, Jeffrey Matteson, Senior Deputy Commissioner for P-20 Policy. Mr. Matteson’s office is located at 89 Washington Avenue, Albany, NY 12234, and he may be reached via email at LEGAL@nysed.gov or by telephone at (518) 474-6400.
Supervisors Who Receive Reports or Complaints
Supervisors and members of management are expected to ensure that employees adhere to this Policy. Any supervisor or member of management who receives a report or complaint of alleged violations, whether verbal or written shall immediately report the same to ODA and not attempt to resolve the matter on their own. The report to ODA shall be made regardless of the supervisor’s or member of management’s personal beliefs or opinions, if any, as to the legitimacy of the complaint or perceived credibility of the complainant.
Review and Investigation
ODA must promptly and thoroughly review all discrimination complaints and reports regardless of the wishes of the complainant. The investigation may include document review, witness interviews, and the interrogation of the alleged violator(s). Respondents will be informed of their rights to have legal or union representation where applicable. Employees must cooperate with ODA staff in their conducting of investigations under the Policy.
Confidentiality
Investigations shall be kept confidential except when otherwise required to be disclosed by law. Supervisors, members of management and witnesses having knowledge of investigations or written findings are also expected to maintain confidentiality.
Violation of the confidentiality of investigations under this Policy may result in disciplinary or other action in accordance with NYSED policies and/or applicable collective bargaining agreement.
Determination
All complainants and respondents will be informed of the final determination regarding any complaint made to ODA. If discipline or other action is recommended, such recommendations will be communicated by ODA to NYSED Bureau of Labor Relations for administrative action in accordance with the terms of the applicable collective bargaining agreement or Civil Service Law.
Complaint Alternatives
Complaints of employment discrimination may also be made to the New York State Division of Human Rights (DHR) and/or the U.S. Equal Employment Opportunity Commission (EEOC) in accordance with state and/or federal law. Complainants may also have the right to pursue private civil lawsuits in certain circumstances. Complainants are encouraged to consult with an attorney who can advise as to their rights under the law.
Definitions
Discrimination is unfair treatment because of membership in a protected class listed above, harassment (as more fully defined below), or unlawful denial of a reasonable workplace accommodation as required by law.
Harassment is any verbal, physical or work-related conduct that demeans, shows hostility or aversion toward an individual because of their membership in a protected class listed above. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct does not need to be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. It also includes workplace behavior that is offensive and based on stereotypes about a particular protected group, or which is intended to cause discomfort or humiliation on the basis of protected class membership.
Harassing conduct includes, but is not limited to: slurs, epithets, insults, derogatory comments, innuendos or negative stereotyping; threatening, intimidating or hostile acts; demeaning jokes and displays or circulation of such in the work environment; circulation of written (including e-mail) or graphic material that demeans or shows hostility or aversion toward an individual’s or group’s protected class; or retaliatory actions, comments or behaviors towards those opposing discriminatory practices.
Retaliation is the firing, demotion, harassment, or any other adverse action taken against an individual because they filed a charge of discrimination, because they complained about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).
Age
While most cases of age discrimination concern allegations that an employee was perceived to be “too old” by an employer, under the Human Rights Law it is also discriminatory to base an employment decision on a perception that a person is “too young,” as long as the person is at least 18. However, basing a decision on lack of experience or ability is not discriminatory.
Decisions about hiring, job assignments or training must never be based on age-related assumptions about an employee’s abilities or willingness to learn or undertake new tasks and responsibilities.
All employees must refrain from conduct or language that directly or indirectly expresses a preference for employees of a certain age group. Ageist remarks must be avoided in the workplace.
Race and Color
Discrimination because of a person’s membership in or association with an identifiable class of people based on ancestry or ethnic characteristics can be considered racial discrimination.
There is no objective standard for determining an individual’s racial identity. Therefore, as an employer, the NYSED defers to an employee’s self-identification as a member of a particular race.
The Human Rights Law explicitly provides that the definition of race includes traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. Protective hairstyles include such hairstyles as braids, locks and twists.
Color can be an independent protected class, based on the color of an individual’s skin, irrespective of their race.
Creed
Encompasses belief in a supreme being or membership in an organized religion or congregation. Atheism and agnosticism are considered creeds as well. A person is also protected from discrimination because of having no religion or creed. An individual’s self-identification with a particular creed or religious tradition is determinative.
Sabbath or holy day observance
An employee is entitled to time off for religious observance of a sabbath or holy day or days, in accordance with the requirements of their religion, provided it does not impose an undue hardship to their employer, in accordance with NYSED Religious Accommodation Policy. Time off shall also be granted to provide a reasonable amount of time for travel before and after the observance.
Religious observance or practices
An employee who, in accordance with their religious beliefs, observes a particular manner of dress, hairstyle, beard, or other religious practice, should not be unreasonably required to compromise their practice in the workplace. The employer is required by law to make a bona fide effort to accommodate an employee’s or prospective employee’s religious observance or practice. Employers are required to reasonably accommodate the wearing of attire, clothing, or facial hair in accordance with the requirements of an employee’s religion, provided it does not impose an undue hardship on the employer.
National Origin
National origin is defined as including ancestry, so an individual born in the United States is nonetheless protected against discrimination based on their ancestors’ nationality. An individual’s self-identification with a particular national or ethnic group is determinative.
Language
Fluency in English may be a job requirement. However, requiring that a person speaks English as their primary language, or be a “native speaker,” may be considered national origin discrimination. In some circumstances, where a particular level of fluency in English is not necessary for job performance, requiring such fluency might also constitute national origin discrimination. The only lawful requirement is for a level of English fluency necessary for the job.
Requiring employees to speak only English at all times in the workplace may be national origin discrimination. Any specific workplace rule about language use must be reasonable and necessary to the efficient conduct of State business. Any such reasonable rule that prohibits or limits the use of a language other than English in the workplace must be clearly communicated to employees before it can be enforced.
Requiring fluency in a language other than English, such as for employment in bilingual positions, is not discriminatory. However, a job qualification of language fluency must be based on an individual’s ability, not on national origin. A requirement that an individual be a “native speaker” of a language other than English is discriminatory.
Military Status
Military status is defined as a person's participation in the military service of the United States or the military service of the State, including, but not limited to, the armed forces of the United States, the Army National Guard, the Air National Guard, the New York Naval Militia, or the New York Guard.
Sex
Sex/gender discrimination also includes discrimination on the basis of gender identity, pregnancy, childbirth or prenatal leave, sexual orientation and sexual harassment. Sex-based discrimination under any of the following forms may constitute a violation of Title IX of the Education Amendments of 1972. For further information concerning how to file a Title IX Complaint, please refer to the NYSED Title IX Grievance Procedure.
Sex stereotyping
Stereotyping based upon sex or gender occurs when conduct, personality traits, or other attributes are considered inappropriate simply because they may not conform to general societal norms or other perceptions about how individuals of either sex should act or look. Making employment decisions based on sex-stereotyped evaluations of conduct, looks or dress can be considered discrimination on the basis of sex or gender.
Discrimination because a person does not conform to gender stereotypes is discrimination based upon sex or gender and may constitute sexual harassment. Derogatory comments directed at a person who has undergone gender dysphoria-related medical treatment could constitute sexual harassment, just as comments about secondary sex characteristics of any person could be sexual harassment.
Sex discrimination can also arise in the context of gender transition issues such as an employer’s refusal to recognize an employee’s sex after transition.
Sexual Harassment is a type of sex discrimination defined as unwelcome sexual advances, requests for sexual favors, and any other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct either explicitly or implicitly affects an individual's employment; submission to, or rejection of, such conduct by an individual is used as a basis for employment decisions affecting such individual; or the conduct has the purpose or effect of causing unreasonable interference with an individual's work performance, or creating an intimidating, hostile, or offensive work environment. For a complete definition of sexual harassment, including examples of potential sexual harassment, please refer to the NYSED Sexual Harassment Policy.
Sexual Orientation
The term “sexual orientation” means heterosexuality, same-gender relationships, bisexuality or asexuality, whether actual or perceived.
Gender Identity of Expression
Gender identity or expression” means an individual’s actual or perceived gender-related identity, appearance, behavior, expressions other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.
A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.
Gender dysphoria is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.
Rights with regard to name, title, and pronoun
An individual is entitled to be addressed by the name, title and pronoun that the individual prefers. Managers, supervisors and other employees should comply with such requests, regardless of the individual’s appearance, anatomy, medical history, sex assigned at birth, or legal name, and without requiring identification or other forms of “proof” of gender identity. It is lawful to use an employee’s legal name in employment related documents, such as for payroll and tax records, and insurance and retirement benefits. Once the employee obtains a court order legally changing their name and gender marker, they are entitled to have all records changed to the employee’s legal name upon presentation of the court order to the Office of Human Resource Management by email HBA@NYSED.GOV. Failure to use the name, title or pronoun preferred by the individual may constitute discrimination on the basis of gender identity or expression.
Access to gender-segregated facilities and programs
An individual is entitled to use gender-segregated facilities (e.g., changing rooms, locker rooms, showers, restrooms), and participate in gender-separated programs, consistent with that individual’s gender identity, regardless of appearance, anatomy, medical history, sex assigned at birth, or gender indicated on identification, and without requiring any “proof” of gender identity. An individual is entitled to be free from any discrimination or harassment because of the individual’s use of a particular gender-separated facility. The Department is not required to change existing facilities to all-gender facilities, or to construct new facilities.
Where single-occupancy facilities exist, any individual may use such facilities, regardless of the gender-designation of such facility. However, an individual may not be required to use a single-occupancy facility because of the individual’s gender identity or expression, including, but not limited to, transgender, gender non-conforming, non-binary, or because of another individual’s concerns.
Dress codes, uniforms, grooming, and appearance standards
Employers may not require dress, uniforms, grooming, or appearance that differ based on gender, sex, or sex stereotypes. Any dress code must be applied consistently, regardless of gender or gender identity.
Disability
A “disability” is:
a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques; or
a record of such an impairment; or
a condition regarded by others as such an impairment.
Because this definition includes any impairment that is demonstrable by clinical or laboratory diagnostic techniques, it includes most disabling conditions. For additional information please review NYSED Reasonable Accommodation Policy.
Drug and Alcohol-Free Workplace Policy
Employees are subject to criminal, civil, and disciplinary penalties if they distribute, sell, attempt to sell, possess, or purchase controlled substances while at the workplace or while acting in a work-related capacity. Such illegal acts, even if engaged in while off duty, may result in disciplinary action. In those locations where it is permitted, an employee may possess and use a controlled substance that is properly prescribed for the employee by a physician. Employees are also prohibited from on-the-job use of, or impairment from, alcohol. If a supervisor has a reasonable suspicion that an employee is unable to perform job duties due to the use of controlled substances or alcohol, that employee may be required to undergo medical testing. If the employee has a disability that is drug- or alcohol-related, the employee may be referred to voluntary and confidential participation in the statewide Employee Assistance Program. Other available options include pursuing disability leave procedures or disciplinary measures.
Drug addiction and alcoholism under the Human Rights Law and Regulations
An individual who is currently using drugs illegally is not protected under the disability provisions of the Human Rights Law. The law protects individuals who are recovered or recovering drug addicts or alcoholics and may protect alcoholics if the alcoholism does not interfere with job performance. Intoxication or use of alcohol on the job is not protected.
Predisposing Genetic Characteristics
A predisposing genetic characteristic is defined as “any inherited gene or chromosome, or alteration thereof determined by a genetic test or inferred from information derived from an individual or family member that is scientifically or medically believed to predispose an individual or the offspring of that individual to a disease or disability, or to be associated with a statistically significant increased risk of development of a physical or mental disease or disability. Testing for such genetic characteristics is prohibited in most circumstances.
Familial Status
“Familial status” includes being pregnant, having a child under the age of 18, having legal custody of any person under the age of 18, or having a person under the age of 18 residing in the home of the designee of the parent, or being in the process of securing custody, adoption or foster care placement of any person under 18.
Marital Status
Marital status” is the condition of being single, married, separated, divorced, or widowed.
Status of a Survivor of Domestic Violence
A survivor of domestic violence is “any person over the age of sixteen, any married person or any parent accompanied by their minor child or children in situations in which such person or such person’s child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion; and (i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child; and (ii) such act or acts are or are alleged to have been committed by a family or household member.
The Human Rights Law protect survivors of domestic violence. The law provides for leave time as a reasonable accommodation for the following reasons related to domestic violence:
- Medical attention for the victim, or a child who is the victim;
- Obtaining services from a domestic violence shelter, program or rape crisis center;
- Obtaining psychological counseling, including for a child who is a victim;
- For safety planning, or taking action to increase safety, including temporary or permanent relocation;
- Obtaining legal services, assisting with prosecution, or appearing in court.
Additional information can be found here about NYSED Domestic Violence and Workplace Policy.
Pregnancy, Childbirth, and Family Leave
Discrimination on the basis of pregnancy constitutes discrimination on the basis of sex and familial status. Furthermore, medical conditions related to pregnancy or childbirth must be reasonably accommodated in the same manner as any temporary disability. Parental leave is available to employees on a gender-neutral basis.
Prior Arrest Records, Youthful Offender Adjudications, and Sealed Conviction Records
It is an unlawful discriminatory practice for an employer to make any inquiry about any arrest or criminal accusation of an individual, not then pending against that individual, which has been resolved in favor of the accused or adjourned in contemplation of dismissal or resolved by a youthful offender adjudication or resulted in a sealed conviction. It is unlawful to require any individual to divulge information pertaining to any such arrest, criminal accusation or sealed conviction, or to take any adverse action.
Pending arrest or charges
As long as an arrest or criminal accusation remains pending, the individual is not protected. The agency may refuse to hire or may terminate or discipline the employee in accordance with applicable law or collective bargaining agreement provisions. The agency may also question the employee about the pending arrest or accusation, the underlying circumstances, and the progress of the matter through the criminal justice system.
However, if the employee is arrested while employed, is not terminated by the employer, and the arrest is subsequently terminated in favor of the employee, the employee cannot then initiate an adverse action against the employee based on the arrest and cannot question the employee about the matter. The employer can require that the employee provide proof of the favorable disposition in a timely manner.
Commitment to Equal Opportunity
NYSED will ensure equal opportunity for all individuals and foster an atmosphere of non-discrimination. All employees will participate in annual anti-discrimination training.