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This chapter will explore the concepts of illegal discrimination and harassment. Harassment and discrimination can occur without reaching the threshold of unlawful behavior. When they are not severe or pervasive in nature and when they fail to substantially interfere with an individual's ability to perform a job, they are probably not unlawful behaviors. Such behaviors, however, can be hostile, intimidating, threatening, demeaning, demoralizing and uncomfortable for the offended person.
Eliminating discrimination and harassment from the workplace is the right thing to do in any business. It makes sense from a human relations perspective and it aligns with most people's personal values and beliefs about respectful relations at work. It also makes good business sense and, in most cases, it is considered a business imperative or necessity, not only to avoid litigation and unnecessary expenses but to improve productivity, competency and profitability.
Most company policies set the threshold at "Zero Tolerance" for any kind of discrimination or harassment between any individuals in the workplace. These behaviors are policy violations for a very basic reason. These types of interactions distract people from their maximum capabilities in terms of personal productivity, competency and profitability. Ultimately, it impacts the bottom line.
The core business reason for hiring people to work in a company is to have individuals perform essential job functions that enable the company to conduct its business, whether it’s making and/or selling products to consumers or businesses or delivering services to consumers or businesses. Anything in the workplace that detracts employees from meeting business targets needs to be eliminated.
We will start this chapter with an exercise that gives you an opportunity to assess different scenarios and evaluate what type of behavior is occurring. Is it illegal discrimination or harassment? Is it a policy violation? Is it an acceptable behavior? The exercise is followed by answers and explanations for each scenario. Then definitions and discussions of illegal discrimination and illegal harassment follow.
INSTRUCTIONS:
Read each Example.
Put a "e" in the "Acceptable Behavior Column" if you believe it is acceptable behavior.
Put a "e" in the "Policy Violation Column" if you believe it is a Policy violation.
Put a "e" in the "Unlawful Behavior Column" if you believe it is illegal discrimination or harassment.
| Example | What is it? | Thoughts/Questions | |||
| Acceptable Behavior | Policy Violation | Unlawful Behavior | |||
| 1. | Frank said to Susan, “We should just tie Mario’s hands behind his back, then he couldn’t talk anymore. Italians can’t talk without waving their arms around, can they?” Susan responded, “Hey be careful, I’m Italian too!” | ||||
| 2. | Cheryl is wearing a new outfit. Bill, her boss, politely comments on how nice the outfit looks. | ||||
| 3. | Jan leaves her desk every morning when Nicole stops by to tell Karen X-rated details of her night with her boyfriend. Jan is having trouble getting her work done on time because of these frequent disruptions. Her supervisor put her on a written warning. She complained about Nicole's behavior and he told her not to be so sensitive. | ||||
| 4. | Tom asks Sue out on a date. She says, "No." He politely asks her again a week later and she again says no. He does not ask her out again. | ||||
| 5. | Jasmine complains to her supervisor that some of the female interns show their personal Playgirl calendars to each other when they are in the break room. Her supervisor says she is just too sensitive and that she should ignore them. | ||||
| 6. | William and Sharon are waiting for group supervision to begin. William says, "This week has been the worst yet! I don't know which is worse, my Schitz with the Bipolar girlfriend or the new codependent interns!" Sharon replies, "Hey, you were one too! I bet my Domestic Violence victim with passive aggressive tendencies makes your Schitz look like a walk in the park!" | ||||
| 7. | A key referral source regularly takes supervisors to an “adult bar.” Jim has told his supervisor that he's uncomfortable with this activity. His manager says, “Lighten up, we can’t afford to lose referrals!” Two days later, Jim quit and told HR that he quit because his manager forced him to go to "adult bars" with a referral source and it made him very uncomfortable. He was also afraid his wife would divorce him if he kept going to those places, even on business-related visits. | ||||
| 8. | Juan said to Bill, “Right now is not the best time to get a decision from Laura. She’s really in a bad mood.” | ||||
| 9. | Ronald had recently put Cornelius on a corrective action plan. He is one of the intern supervisees and he was performing below standard. Today, Ronald placed Cornelius on warning for not adequately preparing for supervision sessions. Cornelius thinks Ronald only picks on him because he is African-American. Ronald manages all his intern supervisees fairly and consistently. | ||||
| 10. | A hiring supervisor hears two interns talking, “There's Ed, finally dragging back from break. He’s been around this place for 20 years. He should retire. He says he’s 52, but I’ll bet he’s 70 if he’s a day.” Later, Ed tells his supervisor he heard the comment and he and five other older workers received anonymous flyers regarding the retirement program. The supervisor said, "Hey, maybe all of you should retire!" | ||||
| 11. | Betsy, who is outgoing and nice to everybody, always gives everyone a hug when she sees people at work. No one has complained and her coworkers consider her a great employee. | ||||
| 12. | A hiring supervisor grumbles to a manager, “I’ve seen all the new Black and brown faces around here! You can't even tell we’re in America anymore with all those people getting hired. We must have quotas or something. Whites will be the only minorities before you now it! I'll be darned if I will collude with that kind of reverse discrimination when I recruit my next new hires!" | ||||
| 13. | Joe, a new White male supervisor began the group supervision meeting by saying, “Okay boys, let’s get started!” When Wilson, an African-American intern hears the term “boys” he lets out a big sigh and rolls his eyes. Joe says, "Boy, don't cop an attitude! Now listen up and pay attention!" | ||||
| 14. | Two supervisors are talking about a new hire while walking down the corridor. “Did you see the deaf guy in the break room? He’s can't even hear! How's he going to do therapy? Can you believe it! I never would have hired him." | ||||
| 15. | Marcy keeps putting religious pamphlets in Susan’s mailbox. Susan told her she doesn't want them. Marcy begins to put pamphlets in Eric’s mailbox. Eric throws them out, without saying anything. Marcy keeps leaving them. | ||||
Policy Violation
This behavior on Frank's part probably wouldn't rise to the threshold of unlawful national origin discrimination because there is no evidence of his remarks having a severe or pervasive nature to them and there is no evidence present that his remarks have adversely affected an individual's employment opportunities.
Clearly, it would be a policy violation if the company had a Zero Tolerance policy toward discriminatory harassment in force. Title 29 §1606.8(b) defines harassment on the basis of national origin as:
Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct: (1) Has the purpose or effect of creating an intimidating, hostile or offensive working environment; (2) Has the purpose or effect of unreasonably interfering with an individual's work competency; or (3) Otherwise adversely affects an individual's employment opportunities (US E.E.O.C. 1999c).
Susan has effectively put Frank on notice that she finds his remarks offensive in nature because of her national origin. Continued comments of this nature by Frank toward Susan or toward others in Susan's presence could be construed as pervasive in nature. If Susan complained that she was so offended by these ongoing remarks that she was finding it difficult to concentrate on her work it could be argued that the behavior was also unreasonably interfering with her work performance (competence) at this point and in that case it may rise to the threshold of unlawful national origin discrimination.
Acceptable Behavior
This comment made by Bill to Cheryl is an acceptable form of interaction between two employees and between a supervisor and an employee. Bill is not commenting on Cheryl's personal appearance, her personal physical characteristics or her gender. His remark specifically relates to her outfit.
It is important to differentiate here between comments directed toward articles of apparel or jewelry and the person's physical appearance or physical characteristics. If Bill had said that Cheryl "really looked gorgeous in that outfit," or that the outfit "really flatters her figure," then it could be argued that the comments would be a policy violation because of their potential offensive nature based on gender discrimination. In other words, if Bill made this comment to Cheryl, he probably wouldn't make a similar comment to a male colleague or subordinate, i.e., Sam really looked gorgeous in that outfit or that outfit really flatters his figure.
Unlawful Behavior
The E.E.O.C. believes that the workplace should be free from sexual slurs, "girlie" pictures, and other forms of offensive conduct. They further state that even if many people in the workplace deem this conduct to be harmless or insignificant it can still be construed to constitute a hostile work environment (Rabidue v. Osceola Refining Co., 1986; Lipsett v. University of Puerto Rico, 1988).
Acceptable Behavior
Tom's interactions with Sue are probably acceptable because it is unreasonable to construe from the evidence that Sue perceives his invitations for a date as offensive, intimidating, hostile or pervasive in nature. After Tom's first invitation, Sue did not make it clear to him that she was uninterested in dating him. After the second rejection, Tom did not ask her out again.
A common stereotype comes into play in this scenario. It is the belief that when women say "No" they really mean "Yes" because they want to "play hard to get." If men choose to believe that this stereotype is true of most females, they must also make a conscious decision to let "No" mean "No" and "Yes" mean "Yes" when asking coworkers out on dates. If not, they may find themselves in violation of a company policy enforcing Zero Tolerance toward sex discrimination for relentlessly pursuing a coworker for a date when she says "No" to his invitations.
And conversely, if women at work choose to believe this stereotype to be true, they must also learn to accept that they will probably get few date invitations from responsible men at work who will be willing to ask them more than twice when they choose to say "No" when they really mean "Pursue Me."
Unlawful Behavior
This is probably unlawful behavior for the same reasons cited in scenario number #3. And, additionally, the supervisor could be found personally liable as evidenced by an increasing number of state courts finding individual managers, supervisors and coworkers personally liable for sexual harassment under various theories of law including assault and battery, intentional infliction of emotional distress, invasion of privacy, negligence, defamation, economic relations, misrepresentation and nondisclosure, nuisance, and other torts.
Policy Violation
This type of behavior probably isn't unlawful discrimination because there does not appear to be a protected class involved unless it could be argued as discrimination due to a covered disability. Clearly though, it is inappropriate behavior because the comments are depersonalizing and labeling in nature. Additionally, one or more of the employees could have a mental or nervous disorder themselves or a close friend or family member who suffers from one. This type of conversation would be offensive and hurtful and it could interfere with a person's ability to fully concentrate on their employment duties due to the stress induced by these types of comments.
Unlawful Behavior
This is probably unlawful sexual harassment because it appears that it has created a threatening, intimidating and hostile workplace environment and it has unreasonably interfered with Jim's work performance, ultimately resulting in his decision to quit. It could be argued that his resignation was a constructive discharge situation; in other words, he had no choice but to quit his job because he couldn't continue to participate in the activity expected of him by both his supervisor and the customer.
Acceptable Behavior
This is acceptable behavior on Juan's part. He has made an observation, formed an opinion and shared it appropriately with Bill. His comments are not threatening, hostile, intimidating, or discriminatory in nature.
Acceptable Behavior
This is acceptable behavior on Ronald's part. Nothing in the law restricts a supervisor from holding employees accountable to performance (competence) standards. The key point is that Ronald manages all his intern supervisees fairly and consistently. If he were to enforce different performance (competency) standards with different intern supervisees then it could be argued that he was engaging in unlawful discrimination based on a protected class such as race, color, sex, national origin, religion or disability.
Unlawful Behavior
This is probably unlawful age discrimination because men and women 40 years of age and older are protected against discrimination based on age under the Age Discrimination in Employment Act. The same thresholds apply, and it appears that the behavior is hostile, threatening and intimidating in nature and it is unreasonably interfering with the older workers’ abilities to perform their essential job duties. Because they have informed the supervisor, and the supervisor has not only failed to take corrective action but has engaged in discriminatory actions himself, more liability could be assessed against the company and the supervisor could be found personally liable as well.
Acceptable Behavior
This is probably acceptable behavior in this workplace among these employees because no one has complained about Betsy's behavior. She appears to treat everyone the same, and she is well liked and perceived as well intentioned in her interactions. In some instances, this type of behavior could be a policy violation if the company has a specific policy prohibiting affectionate touching. In some cases, this type of affectionate expression could be uncomfortable for individual employees. If an individual employee does find it uncomfortable, offensive, threatening or intimidating then he or she should confront the employee and let him or her know how they are feeling about the hugs.
Unlawful Behavior
This type of behavior on the part of a hiring manager would probably be unlawful national origin discrimination because a hiring manager is claiming that he will not avoid national origin, race or color discrimination in his next hiring decisions and he seems to be implying that he will intentionally give hiring preferences to Whites. If a complaint is filed against him in the future, then his statements could possibly be used against him to show premeditation and conscious and willful intent to engage in unlawful discriminatory hiring practices. See Title 29 § 1606.8 (b)(c):
- Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct:
- Has the purpose or effect of creating an intimidating, hostile or offensive working environment;
- Has the purpose or effect of unreasonably interfering with an individual's work performance; or
- Otherwise adversely affects an individual's employment opportunities.
- An employer is responsible for its acts and those of its agents and supervisory employees with respect to harassment on the basis of national origin regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.
Policy Violation
In this scenario, we don't have enough data to know if the discriminatory comments by Joe directed toward Wilson rise to the threshold of unlawful race, color or national origin discrimination. We do know that a competent and responsible supervisor would refrain from using the term "boys" when addressing an adult audience.
This scenario is an example of how a speaker's intent can have an unexpected impact on the audience. It could be that Joe is unaware of how demeaning and degrading the term "boy" can be to a nonwhite adult male. Whether he knows this or not, his comments can have a negative impact and he has a responsibility to manage his interactions with a diverse workforce.
When Joe noticed that Wilson was rolling his eyes he could have inquired about what Wilson was reacting to or he could have approached Wilson privately and asked him what was bothering him during the meeting. Instead, he assumed he knew what was going on, that Wilson was exhibiting "an attitude" he didn't appreciate and he confronted him about it in front of the whole group in a judgmental and sarcastic manner.
Unlawful Behavior
One supervisor specifically states that he would never have hired the new therapist because of an auditory disability. This comment could lay the foundation for an allegation of premeditation to practice unlawful discrimination against a qualified disabled person in the future should this hiring manager choose not to hire a qualified, disabled applicant who later files a claim for discriminatory hiring practices. This type of behavior and belief system could also lead to future discriminatory practices in supervision should this disabled intern/supervisee be assigned to this supervisor for supervision because of the supervisor's judgment about his abilities to conduct therapy based solely on his disability.
The Americans with Disabilties Act of 1990, Title I § 12112. [Section 102] (a) says:
(a) General rule. - No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b) Construction. - As used in subsection (a) of this section, the term "discriminate'' includes-
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.
Policy Violation
This is probably a policy violation because most agencies have a policy against solicitation on company premises. Distributing religious pamphlets is usually construed as soliciting potential converts and is considered inappropriate behavior in the workplace because of the diverse religious backgrounds and practices among the staff. It could also be construed as unlawful religious discrimination under Title VII of The Civil Rights Act of 1964 because at least one employee has requested she refrain from distributing the pamphlets to him.
Discrimination can take several different forms. It can be different treatment, harassment, failure to make a reasonable accommodation, or disparate impact. We will explore each one of these types in more detail.
Title VII of The Civil Rights Act of 1964 clearly prohibits employment discrimination on the basis of an individual's race, color, national origin, religion, or sex. The following examples are given as illustrations and are not all inclusive of the possible protected groups. Asians, African-Americans, Whites, Native Americans and Hispanics are protected from employment discrimination based on race and color. Spaniards, Cubans, Jamaicans, Americans, Europeans, Australians are all protected from employment discrimination based on national origin. Hindus, Buddhists, Muslims, Jews, Christians and atheists are all protected from employment discrimination based on religion. Both males and females are protected from sex or gender discrimination.
Although Title VII specifically prohibits both race and color discrimination, the courts do not consistently differentiate between them. There are three types of race and color discrimination in case law (United States E.E.O.C. 2000a).
Race and color discrimination includes discriminating against an individual based on the shade of skin color. Employers cannot discriminate against individual employees because their skin is either light or dark in color. This would include Africans, African-Americans, Asians, and all other races.
Using physical characteristics as the basis for employment discrimination is also unlawful race discrimination. This includes but is not limited to facial features, hair, height and other physical characteristics associated with a particular race.
Individuals are protected from employment discrimination because of their association with another individual of a specific race or color. This would include discriminating against an employee because of an inter-racial marriage, or because he or she is the parent of a mixed race son or daughter.
Employers may not discriminate against any employee or applicant by denying equal employment opportunity because of an individual's national origin, birthplace, ancestry, culture, or linguistic characteristics common to a specific group. Equal employment opportunities cannot be denied to individual employees or applicants because of their:
Employers may not have rules requiring that employees only speak English on the job unless it is a necessity for conducting business. If such a necessity exists, then all employees must be informed of the rule and the consequences for violating such a rule.
Employers must be able to demonstrate a legitimate, nondiscriminatory reason for denying employment opportunities based on an individual's accent or manner of speaking. Investigations of allegations of discrimination based on accent will focus on the applicant's qualifications and whether or not his or her accent impaired his or her ability to perform the essential functions of the job for which they had applied.
The E.E.O.C. defines religion as any moral or ethical belief as to what is right or wrong that is sincerely held with the strength of traditional religious views. This broad definition ensures protection against religious discrimination for anyone, regardless of how common or obscure an individual's religious beliefs or practices may be in comparison to another person. This also includes discrimination against someone for being an atheist. Title VII requires covered employers to provide a reasonable accommodation for an individual's religious practices including a leave to observe religious holidays, unless so doing would cause the covered employer undue hardship (United States E.E.O.C. 2000a).
Discrimination based on sex is also prohibited in Title VII. This includes both sexual harassment, when prohibited conduct is sexual in nature, and sex-based harassment that is not sexual in nature, which may be referred to as gender-based harassment (United States E.E.O.C. 2000a).
Sex discrimination also includes discrimination because of pregnancy, childbirth, and any related medical conditions. Covered employers must provide leave time and benefits for women affected by pregnancy and childbirth on the same terms as they would for other employees unable to work (United States E.E.O.C. 2000a).
The law guarantees employees the right to work in an “environment free from discriminatory intimidation, ridicule, and insult.” Sexual harassment, and other forms of discriminatory harassment in the workplace, based upon protected class status is unlawful behavior under Title VII of the Civil Rights Act of 1964.
Discriminatory harassment is any behavior that impacts someone’s ability to carry out the essential duties of his or her job or behavior that someone feels is intimidating, hostile, or offensive, and the behavior is because of someone’s protected class status. Harassment can include:
When the courts are considering whether the behavior has risen to the threshold of unlawful discrimination or harassment, they apply the standard of reasonableness. When the discrimination or harassment is because of a person's protected class status, the standard includes consideration of the perspective of persons of the alleged victim’s race, color, religion, gender, national origin, age, or disability. A “reasonable woman’s” standard is used when considering this perspective for sex discrimination (sexual harassment) when the alleged victim is a female.
Identify the four types of illegal discrimination.
What standard is used to determine if unlawful harassment or discrimination has occurred?
Describe the difference between unlawful discriminatory harassment and harassment.
Describe how discrimination and harassment behaviors affect the workplace.