Harassment and discrimination defined
Before you can make these decisions, you need to understand the law about discrimination and harassment. In basic terms harassment means to disturb, torment, or pester on a persistent basis. Some harassment can be legitimate or lawful. A staff member may believe that a supervisor who frequently asks about the status of an important project is "harassing" him/her. But since the chairperson has a legitimate business reason for the question, it would not be considered unlawful harassment.
When we talk about unlawful and impermissible harassment in the workplace, we are talking about people being treated inappropriately based on their membership in one or more protected groups (race, sex, religion, color, age, national origin or disability). And, at ASU, we state that harassment of persons on the basis of sexual orientation constitutes impermissible harassment, since it is the internal policy to prohibit harassment on the basis of sexual orientation. In most instances, our membership in a protected group is not optional.
Whether your membership in a protected group is natural or voluntary, you most likely take your membership seriously. If someone uses your protected class membership against you or makes fun of it, in all likelihood you will be hurt or offended, and you may well feel that you have been harassed. ASU has the responsibility to correct and rectify harassment when university administrators/supervisors know of its occurrence. The university is usually held accountable for actions occurring in working and learning environments. However, members of the university community have the responsibility to bring harassment and discrimination complaints to the attention of their supervisors or the Equity Office and to follow established university harassment policies, procedures, and guidelines if university officials have no knowledge of such occurrences.
There are two basic types of unlawful workplace harassment : "quid pro quo" and "hostile environment." Each is separately explained (see below), although where there's one, there's often the other.
Quid Pro Quo Harassment
"Quid pro quo" is Latin for "something for something." It is a trade. When the trade is an exchange involving race, sex, color, national origin, religion, creed, age, or handicapping condition, it is illegal. Most people relate quid pro quo to only sexual harassment. However, it can cross into other forms of harassment as well.
The following are examples of quid pro quo harassment when an employer makes conformity to a specific act a prerequisite to getting something in the workplace.
- Hire only Christians for these positions, and you'll get the program coordinator job.
- Have an affair with me and your promotion is guaranteed.
What about the employee who is told to hire only Christians for a particular position? She does it and gets the coordinator position. If the decision to comply was made under duress from the employer, she/he has a harassment suit. What about the other assistants who were eligible for that promotion? They can sue the University as well. It doesn't matter whether or not they would have accepted the offer - they have been discriminated against.
Likewise, if an individual is promoted after having an affair (consenting or non-consenting) with a superior, he or she may be a victim if the affair was non-consenting. However, the qualified person(s) overlooked for the promotion may also be victims, in that the affair denied them the opportunity to be even considered for the position.
Hostile Work Environment - Hostile Learning Environment
Hostile work environment harassment is a situation in which the employer, a supervisor, a co-worker, or even a student does or says things that unreasonably interfere with an individual's work performance or creates an intimidating, hostile or offensive work environment because of his or her race, color, sex, religion, creed, national origin, age, sexual orientation, or handicapping condition. A hostile environment is one that a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
It is important to note that the conduct must be offensive. If two employees have a good time exchanging racist jokes, while it may be in poor judgment, it would not be harassment. If one employee kept telling another employee racist jokes that the second employee found offensive, it could be unlawful harassment. Or, if another employee overheard the two employees exchanging racist jokes and was offended by them, this could also be unlawful harassment.
Jokes, pictures, touching, leering, unwanted solicitations for a date, derogatory epithets, etc., have all been found by courts to be harassing. If you need additional examples...
