Discriminatory Harassment

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Every student has the right to a safe and supportive learning environment free from discrimination and harassment.  

Discriminatory harassment occurs when bullying or harassing conduct is based on a student’s protected class and is serious enough to create a hostile environment. State and federal law requires schools to take steps to protect students from discriminatory harassment.  

This webpage includes information and resources for Washington schools on their obligations to eliminate discriminatory harassment.

Noteworthy resources 

What is Discriminatory Harassment 

Discriminatory harassment occurs when conduct is: 

  1. Based on a student’s protected class, AND 
  2. Serious enough to create a hostile environment. 

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. 

Protected classes under Washington state law include sex, race, color, religion, creed, national origin, sexual orientation, gender identity, gender expression, disability, and used of a trained dog guide or service animal. Additional protected classes for employment contexts include age and honorably discharged veteran or military status. 

Harassment creates a hostile environment when the conduct is so severe, pervasive, or persistent that it limits a student’s ability to participate in, or benefit from, the school’s services, activities, or opportunities. A hostile environment could impact a student’s school life in many ways. Physical illness, anxiety about going to school, or a decline in grades or attendance could signal a hostile environment. 

Schools’ Responsibility to Eliminate Discriminatory Harassment 

When a school knows or reasonably should know of possible discriminatory harassment, it must take prompt and appropriate steps to investigate or otherwise determine what occurred. 

A school can receive notice of harassment in many different ways. In some situations, harassment may be in plain sight, a student may have reported behavior to a teacher or other employee, or an employee may have witnessed the harassment. The school may also receive notice about harassment in an indirect manner, from sources such as a community member, social networking sites, or the media. In other cases, the pervasiveness of harassment may be widespread, openly practiced, or well-known among students or employees. 

Specific steps in an investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student(s) involved, the size and administrative structure of the school, and other factors. However, in all cases the inquiry must be prompt, thorough, and impartial. 

If an investigation reveals that harassment created a hostile environment, the school must then take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. 

Frequently Asked Questions

What is the difference between bullying and discriminatory harassment? 

Harassing behavior may be covered under a school district's Harassment, Intimidation, and Bullying (HIB) policy and procedure. However, if the behavior is based on a student's protected class, the school district should respond using both the HIB policy and procedure, and the nondiscrimination (or sexual harassment) policy and procedure. While both procedures outline complaint and investigation requirements, the nondiscrimination and sexual harassment procedure requires a district-level response. 

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. Ultimately, the school or school district is responsible for recognizing when behavior is discriminatory harassment. 

WAC 392-190-059 requires schools to notify the school district's civil rights compliance coordinator when (1) a HIB complaint indicates possible discriminatory harassment, or (2) during a HIB investigation, the school becomes aware of potential discrimination. 

What steps should a school put in place to protect students during an investigation?

It may be necessary for the school to take interim measures to protect staff or students during an investigation. What interim measures are appropriate will depend on the specific situation but may include the following examples: 

  • Measures to avoid contact between involved students while at school or on the bus 

  • Staff escorts between classes or additional staff supervision in areas of the school Excusing absences 

  • Access to counseling services 

  • Academic accommodations (e.g., rescheduling exams and assignments) or support services, such as tutoring 

  • For impacted employees, changes in work schedule or job assignment

What are appropriate steps to end harassment and address a hostile environment?

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 environment and its effects, and prevent the harassment from recurring. 

Appropriate steps to end harassment and address a hostile environment will depend on the specific situation but may include the following examples: 

  • Measures to avoid contact between involved students while at school, at school activities, or on the bus. However, any separation of the targeted student 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 their class schedule). 
  • Providing counseling or academic support services for the targeted student. It may also be appropriate to allow the targeted student to make up tests or assignments. 
  • Discipline or training for the alleged harasser. 
  • Depending on the extent of the harassment, the school may need to provide training or other interventions not only for the students involved, but for the larger school community to ensure that all students, families, and staff can recognize harassment if it recurs and know how to respond. Issues of discriminatory harassment are often systemic, and it may be appropriate for a school district to reevaluate their nondiscrimination and sexual harassment policies and procedures, provide additional staff training, and clearly communicate that the school district does not tolerate harassment and will be responsive to any student who reports harassment.
What are appropriate steps to prevent harassment from recurring? 

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 environment and its effects, and prevent the harassment from recurring. 

Appropriate steps to prevent harassment from recurring will depend on the specific situation but may include the following examples: 

  • Ensure the alleged harasser and other involved students understand they are not allowed to retaliate against the targeted student or anyone who participated in the investigation 
  • Ensure that targeted students and their families know how to report any subsequent problems 
  • Conduct follow-up inquiries to see if there have been any new incidents or any instances of retaliation, and respond promptly and appropriately to address continuing or new problems 
What if the harassing conduct occurred off campus?

Even if discriminatory or sexual harassment—including sexual violence—occurred off campus, the school district should still investigate to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on the student at school. 

If the harassment took place in the context of an education program or activity of the school, the school district must investigate the complaint as it would for on-campus behavior. Even if the misconduct did not occur in the context of an education program or activity, the school district must still consider the effects of off-campus misconduct when evaluating whether there is a hostile environment on campus. Because students often experience the continuing effects of off-campus discriminatory or sexual harassment while at school, the school district will need to address that hostile environment in the same manner in which it would address a hostile environment created by on-campus misconduct. 

What if the student or parent does not file a formal complaint? 

A school district is responsible for investigating and addressing discriminatory and sexual harassment about which it knows or reasonably should have known. This is a school district's responsibility regardless of whether a student has complained, asked the school to take action, or identified conduct as a form of discrimination. 

Even when the student does not want the school to take action, the school is still responsible for assessing possible impacts to other students or staff. To the extent possible, the school should work to maintain student confidentiality. 

Relevant Laws & Policy

Washington Law & Policy

Federal policy & Guidance

Resources & Support