Last Updated: September 22, 2014
D.C. OFFICE OF HUMAN RIGHTS
NOTICE OF PROPOSED RULEMAKING FOR YOUTH BULLYING PREVENTION ACT OF 2012
The Director of the Office of Human Rights, pursuant to Section 301(c) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c)), Section 10 of the Youth Bullying Prevention Act of 2012, effective September 14, 2012 (D.C. Law 19-167; D.C. Official Code §§ 2-1535.01 et seq.) (“Youth Bullying Prevention Act”), and Mayor’s Order 2013-062, dated April 5, 2013, and Mayor’s Order-2014-135, dated June 6, 2014, hereby gives notice of the intent to amend Title 4 (Human Rights and Relations) of the District of Columbia Municipal Regulations (DCMR) by adding a new Chapter 15 (Youth Bullying Prevention).
The purpose of this new chapter is to provide guidelines for implementation of the Youth Bullying Prevention Act. Specifically, this new chapter would provide information with respect to covered entities, bullying prevention policies, codes of conduct, bullying investigations and appeals, the role of the Office of Human Rights (OHR), the role of the Youth Bullying Prevention Task Force, the OHR complaint procedure, and related matters.
The Director gives notice of the intent to take final rulemaking action to adopt these proposed rules in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.
Title 4, HUMAN RIGHTS AND RELATIONS, of the DCMR is amended by adding a new Chapter 15, YOUTH BULLYING PREVENTION, to read as follows:
CHAPTER 15 YOUTH BULLYING PREVENTION
Section
1500 Purpose
1501 Covered Entities
1502 Adoption of a Bullying Prevention Policy
1503 Code of Conduct
1504 Reporting Requirements
1505 Investigations
1506 Appeals
1507 Dissemination of Bullying Prevention Policy
1508 Submission and Review of Bullying Prevention Policy
1509 Bullying Prevention Programs
1510 Training Requirements
1511 Reporting Requirements of Educational Institutions
1512 Complaint to the Office of Human Rights
1513 Other Responsibilities of the Office of Human Rights
1599 Definitions
1500 PURPOSE
1500.1 The purpose of this chapter is to provide guidance on, and procedures and standards for, the implementation of the Youth Bullying Prevention Act of 2012, effective September 14, 2012 (D.C. Law 19-167; D.C. Official Code §§ 2-1535.01 et seq.).
1501 COVERED ENTITIES
1501.1 The requirements of this chapter apply in whole or in part to the following entities, which are referred to collectively in this chapter as “covered entities”:
(a) Covered agency, as defined in § 1501.2(a);
(b) Educational institutions, as described in § 1501.2(b); and
(c) Grantees of covered agencies and local educational agencies (“covered grantees”), as described in § 1501.2(c).
1501.2 For the purposes of this chapter, the terms “covered agency”, “educational institution”, and “covered grantee” are defined as follows:
(a) A “covered agency” means a District government agency that provides services, activities, or privileges directly or indirectly to youth, and includes the following:
(1) Child and Family Services Agency;
(2) Department of Behavioral Health;
(3) Department of Employment Services, including, but not limited to, the following activities and programs:
(A) In-School Program;
(B) Mayor’s Youth Leadership Institute;
(C) One City High School Internship Program;
(D) Out-of-School Internship Program;
(E) Out-of-School Program;
(F) Pathways for Young Adults;
(G) Summer Youth Employment Program; and
(H) Youth Connection Center;
(4) Department of Health, including, but not limited to, the following activities and programs:
(A) School-based health centers;
(B) Violence prevention programs in public schools and public charter schools; and
(C) College Student Internship Program;
(5) Department of Parks and Recreation;
(6) Department of Youth Rehabilitation Services;
(7) District of Columbia Public Library;
(8) Metropolitan Police Department, including, but not limited to the following activities and programs:
(A) Summer with the Metropolitan Police Department;
(B) Youth Advisory Council;
(C) Junior Police Academy; and
(D) Fun and Safe Kids;
(9) Office of the State Superintendent of Education; and
(10) University of the District of Columbia.
(b) An “educational institution” means:
(1) The District of Columbia Public Schools (DCPS); and
(2) Each local education agency, as defined in Section 101 of the Testing Integrity Act of 2013, effective October 17, 2013 (D.C. Law 20-27; D.C. Official Code §§ 38-771.01 et seq.), that receives funds from the District.
(c) A “covered grantee” means an entity or contractor of an entity that provides services, activities, or privileges to youth on behalf of the District government or through District funding.
1501.3 Each covered entity and educational institution shall ensure that when hiring or contracting with a contractor or vendor to provide services, activities, or privileges to youth that the contractor or vendor will comply with the requirements of this chapter and the Act.
1501.4 Each covered entity and educational institution shall ensure that when it issues a grant to a grantee to provide services, activities, or privileges to youth on behalf of the District or through District funding that the grantee will comply with the requirements of this chapter and the Act.
1502 ADOPTION OF A BULLYING PREVENTION POLICY
1502.1 Each covered entity shall adopt a bullying prevention policy by September 14, 2013; provided, that a covered entity that did not exist as of September 14, 2013, shall promulgate a bullying prevention policy by the later of September 14, 2014, or the date on which it begins to provide services, activities, or privileges to youth.
1502.2 A covered entity’s bullying prevention policy shall at a minimum include the following elements:
(a) The legal definition of bullying set forth in § 1599;
(b) A statement prohibiting bullying, including cyberbullying, and retaliation for reporting bullying;
(c) A statement that the policy applies at all of the locations listed in §1502.3;
(d) A code of conduct;
(e) A list of consequences that can result from an identified incident of bullying. The consequences shall be designed to:
(1) Appropriately correct the bullying behavior;
(2) Prevent another occurrence of bullying or retaliation;
(3) Protect the target of the bullying; and
(4) Be flexible in application , appropriate to the individual incident, and varied in method and severity based on the:
(A) Nature of the incident;
(B) Developmental age of the person bullying; and
(C) Any history of problem behavior from the person bullying;
(f) A procedure for reporting bullying, retaliation for reporting bullying (“retaliation”), or other violations of the bullying prevention policy that permits anonymous reporting;
(g) A procedure for prompt investigation of reports of bullying, retaliation, or other violations of the bullying prevention policy that identifies the name and contact information for people responsible for investigating bullying and retaliation;
(h) An appeal process, consistent with § 1506, for a person accused of bullying or a person who is the target of bullying or retaliation who is not satisfied with the outcome of an initial investigation under § 1505;
(i) A statement that retaliation against any person for reporting an incident of bullying is prohibited and a description of the possible consequences for a person who engages in retaliatory behavior.
1502.3 Each covered entity’s bullying prevention policy shall apply at the following locations:
(a) On the covered entity’s property, including buildings, fields, parking lots, and walkways;
(b) At events sponsored by the covered entity, including sponsored events held off the property of the covered entity;
(c) On any vehicle used for transportation by or on behalf of the covered entity, including transportation for sponsored events of youth; and
(d) At any transit stop at which youth wait to be transported to the covered entity or an event sponsored by the covered entity.
1502.4 Each covered entity’s bullying prevention policy shall apply to electronic communications sent from or to someone at a location listed in § 1502.3, whether or not the communications device is owned or leased by the covered entity.
1502.5 Bullying prohibited on non-covered-entity property includes, but is not limited to, conduct which creates a hostile environment at the covered entity for the target or witnesses, impedes or interferes with a youth’s ability to participate at the covered entity, or materially and substantially disrupts the orderly operation of the covered entity.
1503 CODE OF CONDUCT
1503.1 The code of conduct required by § 1502.2(d) may state that:
(a) The covered entity expects youth to behave in a way that supports the covered entity’s objective to provide a safe and welcoming environment for other youth;
(b) Youth who are part of the covered entity community are expected to:
(1) Treat all other youth at the covered entity with respect;
(2) Respect the property of other youth at the covered entity; and
(3) Respond appropriately to instructions from covered entity staff regarding behavior toward other youth.
1504 REPORTING REQUIREMENTS
1504.1 Employees and volunteers of covered entities shall promptly report incidents of bullying or retaliation that they witness and incidents of bullying or retaliation about which they have reliable information.
1504.2 Each covered entity may encourage youth, parents, guardians, and community members to report any incidents of bullying or retaliation that they witness or of which they are aware.
1504.3 Reports of bullying, retaliation, and other violations of the bullying prevention policy shall be made to the person designated by the covered entity to investigate incidents of bullying and retaliation. The covered entity shall allow reports to be made in person, by mail, or through an anonymous drop box at the covered entity.
1504.4 Information about reporting bullying and retaliation shall be communicated to youth connected with the covered entity in an age-appropriate manner.
1504.5 Each covered entity shall ensure that there are reporting materials available in a wide variety of languages as required by the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code §§ 2-1931 et seq. (2012 Repl.))
1504.6 Reporting materials may include brochures, pamphlets, and questionnaires which are used to report acts of bullying or retaliation.
1504.7 The person designated by a covered entity to investigate bullying, retaliation, and other violations of the bullying prevention policy shall create a written description of each incident of bullying, retaliation, or other violation of the bullying prevention policy that was reported to him or her and shall include the description in the annual report required by § 1511.3.
1505 INVESTIGATIONS
1505.1 Each covered entity shall promptly investigate each report of bullying, retaliation, or other violation of the bullying prevention policy.
1505.2 Within two (2) days of receiving a report of bullying, retaliation, or other violation of the bullying prevention policy the investigator shall:
(a) Take appropriate action to ensure, to the extent possible, the safety of the alleged target referenced in the report. Appropriate actions may include contacting relevant parties, intercepting the target or alleged perpetrator if information is received regarding a pending act of bullying or retaliation, or ascertaining that teachers or other employees are present at a location that has been identified as the site of a pending act of bullying or retaliation;
(b) Inform the target, and the parents and guardians of the target of the alleged incident if the target is less than eighteen (18) years of age, of the planned investigation; and
(c) Notify each alleged perpetrator, the parents and guardians of the alleged perpetrator if the alleged perpetrator is less than eighteen (18) years of age, and, if applicable, witnesses to the alleged incident of bullying or retaliation of the planned investigation.
1505.3 The covered entity shall provide confidentiality if possible to individuals interviewed as part of the investigation and inform them retaliation for reporting acts of bullying is prohibited.
1505.4 If the covered entity determines as part of its investigation that the reported incident may involve criminal activity, information about the incident shall be conveyed to the appropriate law enforcement authorities.
1505.5 The investigation shall be completed within thirty (30) days after receipt of a report of bullying, retaliation, or other violation of the bullying prevention policy.
1505.6 The investigator or a designee of the covered entity shall issue a written report setting forth his or her findings and recommendations within thirty (30) days after receiving a report of bullying, retaliation, or other violation of the bullying prevention policy.
1505.7 The written report shall be provided to the:
(a) Target, if the target is eighteen (18) years of age or older; otherwise to the target’s parents or guardians; and
(b) Perpetrator, if the perpetrator is eighteen (18) years of age or older; otherwise to the alleged perpetrator’s parents or guardians.
1506 APPEALS
1506.1 Each covered entity shall have an appeals process in place that mandates that the covered entity conduct a secondary investigation within thirty (30) days after the conclusion of an initial investigation if a party dissatisfied with the outcome of the initial investigation submits a written request for a secondary investigation.
1506.2 The secondary investigation shall be conducted by an employee who has a higher-level authority in the covered entity then the one who conducted the investigation and who was not involved in the initial investigation.
1506.3 The secondary investigation shall be completed within thirty (30) days after receipt of the request for a secondary investigation; unless the higher-level authority requires additional time to complete a thorough investigation and the higher-level authority sets forth those circumstances in writing. Under those circumstances, he or she may extend the thirty (30) day period by fifteen (15) days.
1506.4 After completing the secondary investigation, the higher-level authority shall notify the party in writing of the results of the investigation and of the party’s ability to seek additional redress under the District of Columbia Human Rights Act.
1507 DISSEMINATION OF BULLYING PREVENTION POLICY
1507.1 Each covered entity shall develop and implement a plan to publicize its bullying prevention policy. The plan shall include actions to:
(a) Discuss its bullying prevention policy with youth; and
(b) Publicize the fact that the policy also applies to functions sponsored by the covered entity.
1508 SUBMISSION AND REVIEW OF BULLYING PREVENTION POLICY
1508.1 Each covered entity shall submit its bullying prevention policy, upon its adoption, to the Office of Human Rights and the Mayor’s Bullying Prevention Task Force established by Mayor’s Order 2012-150, dated September 20, 2012.
1508.2 Within one hundred eighty (180) days after receiving a bullying prevention policy submitted pursuant to Section 3(c)(5) of the Act, the Director of Bullying Prevention and the Task Force shall review the policy for compliance with the requirements of this chapter and the Act.
1508.3 As part of the review, the Director of Bullying Prevention and the Task Force shall:
(a) Determine whether the covered entity adopted a bullying prevention policy consistent with § 1502;
(b) Determine whether the covered entity’s bullying prevention policy is adequate and appropriate; and
(c) Make any recommendations deemed necessary for improvement of the bullying prevention policy.
1509 BULLYING PREVENTION PROGRAMS
1509.1 Each covered entity is encouraged to:
(a) Establish an ongoing bullying prevention program for youth, which educational institutions should align with established health-education standards;
(b) Inform youth about their right to be free from discrimination in public accommodations and education and of the redress available for a violation of their rights under the Human Rights Act;
(c) Provide training on bullying prevention to all volunteers who have significant contact with youth.
1510 TRAINING REQUIREMENTS
1510.1 Each covered entity shall provide bullying prevention training to all of its employees on an annual basis.
1510.2 Each covered entity shall incorporate information on its bullying prevention policy into new employee training.
1511 REPORTING REQUIREMENTS OF EDUCATIONAL INSTITUTIONS
1511.1 Each educational institution shall report to OHR by September 15 of each year to the aggregate number of incidents of bullying, retaliation, and other violations of the bullying prevention policy at the educational institution during the prior school year (including the prior summer term), a brief description of each of each such incident (as required by § 1504.7) and the results of the investigation of the incident.,
1511.2 The annual report of each educational institution shall also include any other information that OHR deems necessary or appropriate and requests from the educational institution.
1512 COMPLAINT TO THE OFFICE OF HUMAN RIGHTS
1512.1 A person may file a complaint with the Office of Human Rights (“OHR”) alleging a violation of the provisions of the Act within one (1) year after the alleged violation occurred or an investigation regarding the alleged violation concluded, whichever is later.
1512.2 A complaint to OHR may include, but is not limited to:
(a) Adequacy of an investigation of bullying, retaliation, or another violation of a bullying prevention policy;
(b) Unreasonable delay in the processing of a report of bullying, retaliation, or another violation of a bullying prevention policy; or
(c) Other failures by the covered entity to follow the requirements of the Act.
1512.3 The complaint shall state the name and address of the covered entity, the name and title (if known) of the person alleged to have committed the violation, a detailed description of the substance of the complaint and alleged violation, and such other information as may be required by OHR.
1512.4 OHR shall conduct an investigation of the complaint within thirty (30) days after a complaint is filed with OHR and shall determine as part of the investigation whether there was a violation of the Act.
1512.5 OHR shall report the results of its investigation to the complainant and covered entity and provide recommendations, if appropriate.
1512.6 If a complaint alleges discriminatory conduct, OHR shall investigate the complaint pursuant to Chapter 7 (Private Sector Complaints) of this title.
1513 OTHER RESPONSIBILITIES OF THE OFFICE OF HUMAN RIGHTS
1513.1 OHR shall assist covered entities with developing bullying prevention policies and programs.
1513.2 OHR, through its Director of Citywide Bullying Prevention Program (hereafter, Director of Bullying Prevention), shall compile, and make available to each covered entity a list of free or low-cost methods for establishing the bullying prevention programs described in § 1509.
1513.3 OHR shall conduct training for covered entities on bullying and techniques for investigating allegations of bullying within one (1) year after the effective date of this chapter.
1599 DEFINITIONS
1599.1 As used in this chapter, the follow words and phrase shall have the meanings ascribed:
Bullying – any severe, pervasive , or persistent act or conduct, whether physical, electronic, or verbal that: (a) is based on a youth’s actual or perceived race, color, ethnicity, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, intellectual ability, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, place of residence or business, or any other distinguishing characteristic, or on a youth’s association with a person or group with any person, with one or more of the actual or perceived foregoing characteristics; and (b) can be reasonably predicted to: (1) place the youth in reasonable fear of physical harm to his or her person or property; (2) cause a substantial detrimental effect on the youth’s physical or mental health; (3) substantially interfere with the youth's academic performance or attendance; or (4) substantially interfere with the youth’s ability to participate in or benefit from the services, activities, or privileges provided by a covered entity.
Covered agency – shall have the meaning set forth in § 1501.2(a);
Covered entity – shall have the meaning set forth in § 1501.1;
Covered grantee – shall have the meaning set forth in § 1501.2(c)
Cyberbullying – any bullying done through electronic means including, but not limited to the Internet, electronic mail (email), texting or “tweeting”.
Educational institution – shall have the meaning set forth in § 1501.2(b).
Employee – an individual who receives compensation for performing a function for a covered entity.
Human Rights Act – the District of Columbia Human Rights Act of 1977, effective December 17, 1977 (D.C. Law 13-38; D.C. Official Code §§ 2-1401.01 et seq.).
Retaliation – to coerce a person, or attempt to coerce a person, to not report an act of bullying; to threaten to harm a person or otherwise subject the person to an adverse action because the person has reported or may report bullying; or to interfere with a person’s right or obligation to report an act of bullying under the Act.
Youth – (a) an individual of twenty-one (21) years of age or less who is enrolled in an educational institution or who uses the services or programs provided by an agency or grantee, or an individual of twenty-two (22) years of age or less who is receiving special education services from an educational institution; or (b) individuals as described paragraph (a) of this definition considered as a group.
Persons desiring to comment on these proposed rules should submit comments in writing to the Office of Human Rights, Office of the General Counsel, 441 4th Street, N.W., Suite 570N, Washington, D.C. 20001, or [email protected] , no later than thirty (30) days after the date of publication of this notice in the D.C. Register. Questions may be directed to Jewell Little, Attorney Advisor at (202) 727-6910. Copies of these proposed rules may be obtained between 8:30 a.m. and 5:00 p.m. at the address stated above.
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