MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary

By: Senator(s) Gunn

AN ACT TO SPECIFY AND DEFINE SEXUAL HARASSMENT IN EMPLOYMENT, TRAINING OR EDUCATION AS A CIVIL RIGHTS VIOLATION; TO PROVIDE A CIVIL PENALTY THEREFOR; AND FOR RELATED PURPOSES.  

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. For the purposes of this act, the following words and phrases shall have the meaning ascribed herein:

(a) Employee.

(i) "Employee" includes:

(A) Any individual performing services for remuneration within this state for an employer;

(B) An apprentice;

(C) An applicant for any apprenticeship.

(ii) "Employee" does not include:

(A) Domestic servants in private homes;

(B) Individuals employed by persons who are not "employers" as defined by this act;

(C) Elected public officials or the members of their immediate personal staff.

(D) Principal administrative officers of the state or of any political subdivision, municipal corporation or other governmental unit or agency;

(E) A person in a vocational rehabilitation facility certified under federal law who has been designated an evaluee, trainee or work activity client.

(b) Employer.

(i) "Employer" includes:

(A) Any person employing fifteen (15) or more employees within Mississippi during twenty (20) or more calendar weeks within the calendar year of or preceding the alleged violation;

(B) Any person employing one or more employees when a complainant alleges civil rights violation due to unlawful discrimination based upon his or her physical or mental handicap unrelated to ability or sexual harassment;

(C) The state and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees;

(D) Any party to a public contract without regard to the number of employees;

(E) A joint apprenticeship or training committee without regard to the number of employees.

(ii) "Employer" does not include any religious corporation, association, educational institution, society, or nonprofit nursing institution conducted by and for those who rely upon treatment by prayer through spiritual means in accordance with the tenets of a recognized church or religious denomination with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, society or nonprofit nursing institution of its activities.

(c) "Employment agency" includes both public and private employment agencies and any person, labor organization, or labor union having a hiring hall or hiring office regularly undertaking, with or without compensation, to procure opportunities to work, to procure, recruit, refer or place employees.

(d) "Labor organization" includes any organization, labor union, craft union, or any voluntary unincorporated association designed to further the cause of the rights of union labor which is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or apprenticeships or applications for apprenticeships, or of other mutual aid or protection in connection with employment, including apprenticeships or applications for apprenticeships.

(e) "Sexual harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (iii) 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.

Whether conduct has the effect of creating an intimidating, hostile, or offensive work environment shall be measured from the point of view of a reasonable person of the aggrieved party's gender.

(f) "Public employer" means the state, an agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(g) "Public employee" means an employee of the state, agency or department thereof, unit of local government, school district, instrumentality or political subdivision. "Public employee" does not include public officers.

(h) "Public officer" means a person who is elected to office pursuant to the Constitution or a statute or ordinance, or who is appointed to an office which is established, and the qualifications and duties of which are prescribed, by the Constitution or a statute or ordinance, to discharge a public duty for the state, agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(i) "Institution of higher education" means any publicly or privately operated university, college, community college, junior college, business or vocational school, or other educational institution offering degrees and instruction beyond the secondary school level.

(j) "Degree" means any designation, appellation, series of letters or words or other symbols which signifies or purports to signify that the recipient thereof has satisfactorily completed an organized academic, business or vocational program of study offered beyond the secondary school level.

(k) "Student" means any individual admitted to or applying for admission to an institution of higher education, or enrolled on a full or part-time basis in a course or program of academic, business or vocational instruction offered by or through an institution of higher education.

(l) "Higher education representative" means and includes the president, chancellor or other holder of any executive office on the administrative staff of an institution of higher education, and any member of the faculty of an institution of higher education, including, but not limited to, a dean or associate or assistant dean, a professor or associate or assistant professor, and a full or part-time instructor or visiting professor, including a graduate assistant or other student who is employed on a temporary basis of less than full-time as a teacher or instructor of any course or program of academic, business or vocational instruction offered by or through an institution of higher education.

(m) "Sexual harassment in higher education" means any unwelcome sexual advances or requests for sexual favors made by a higher education representative to a student, or any conduct of a sexual nature exhibited by a higher education representative toward a student, when such conduct has the purpose or effect of substantially interfering with the student's educational performance or creating an intimidating, hostile or offensive educational environment; or when the higher education representative either explicitly or implicitly makes the student's submission to such conduct a term or condition of, or uses the student's submission to or rejection of such conduct as a basis for determining:

(i) Whether the student will be admitted to an institution of higher education;

(ii) The educational performance required or expected of the student;

(iii) The attendance or assignment requirements applicable to the student;

(iv) To what courses, fields of study or programs, including honors and graduate programs, the student will be admitted;

(v) What placement or course proficiency requirements are applicable to the student;

(vi) The quality of instruction the student will receive;

(vii) What tuition or fee requirements are applicable to the student;

(viii) What scholarship opportunities are available to the student;

(ix) What extracurricular teams the student will be a member of or in what extracurricular competitions the student will participate;

(x) Any grade the student will receive in any examination or in any course or program of instruction in which the student is enrolled;

(xi) The progress of the student toward successful completion of or graduation from any course or program of instruction in which the student is enrolled; or

(xii) What degree, if any, the student will receive.

Whether conduct has the effect of creating an intimidating, hostile, or offensive educational environment shall be measured from the point of view of a reasonable person of the aggrieved party's gender.

SECTION 2. Persons found guilty of a civil rights violation under the provisions of this act shall be subject to process enjoining the behavior constituting the violation and may further be civilly liable to the person whose civil rights were violated for treble damages plus costs of court and reasonable attorney fees.

SECTION 3. It is a civil rights violation:

(a) For any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment; provided, that an employer shall be responsible for sexual harassment of the employer's employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures;

(b) For any higher education representative to commit or engage in sexual harassment in higher education;

(c) For any institution of higher education to fail to take remedial action, or to fail to take appropriate disciplinary action against a higher education representative employed by such institution, when such institution knows that such higher education representative was committing or engaging in or committed or engaged in sexual harassment in higher education;

(d) For a person, or for two (2) or more persons to conspire, to retaliate against a person because he has opposed that which he reasonably and in good faith believes to be unlawful sexual harassment or because he has made a charge, filed a complaint, testified, assisted or participated in a proceeding under this act; or

(e) For a person to aid, abet, compel or coerce a person to commit any violation of this act.

SECTION 4. Every state executive department, state agency, board, commission, political subdivision and instrumentality shall:

(a) Comply with this act;

(b) Establish, maintain and carry out a continuing sexual harassment program that shall include the following:

(i) Develop a written sexual harassment policy that includes at a minimum the following information:

(A) The illegality of sexual harassment;

(B) The definition of sexual harassment under state law;

(C) A description of sexual harassment, utilizing examples;

(D) The agency's internal complaint process including penalties;

(E) The legal recourse, investigative and complaint process available; and

(F) Protection against retaliation.

The policy shall be reviewed annually.

(ii) Post in a prominent and accessible location and distribute in a manner to assure notice to all agency employees without exception the agency's sexual harassment policy. Such documents may meet, but shall not exceed, the 6th grade literacy level.

(iii) Provide training on sexual harassment prevention and the agency's sexual harassment policy as a component of all ongoing or new employee training programs.

SECTION 5. (1) Venue for judicial enforcement of this act shall be in the circuit court of the county wherein the civil rights violation is alleged to have been committed.

(2) Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this act.

SECTION 6. This act shall take effect and be in force from and after July 1, 1997.