Harassment and discrimination defined
Before you can make these decisions, you need to understand the law regarding 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" her. But since the supervisor has a legitimate business reason for the question, it may not be considered unlawful harassment.
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 and/or 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 Office of EDC 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."
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, gender identity and expression, color, national origin, religion, creed, age, sexual orientation, political affiliation, veteran status or disability, it is impermissible. 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 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 may have a harassment claim. What about the other assistants who were eligible for that promotion? They may file a claim against the University as well. It doesn't matter whether or not they would have accepted the offer - they may 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 of sexual harassment. However, the qualified person(s) overlooked for the promotion may also be victims, in that the affair denied them the opportunity to be 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, gender identity and expression, religion, creed, national origin, age, sexual orientation, political affiliation, veteran status or disability. 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. Click here for additional examples
