Today's course includes some reflection activities so it is recommended that you have a notebook, pen and paper, or a program opened in your computer where you can jot something down or make notes.
Diversity and Inclusion
This course will provide you with what diversity and inclusion mean to you as an employee, what your rights are, and how you're affected by these different pieces of diversity, inclusion, and employment law.
Figure 1. Different & Same.
I like the graphic in figure 1 because the word different is made up of the word the same over and over, and the word same is made up of the word different over and over. That's really what we're talking about when we get into discussing diversity and inclusion. We have those terms that separate the two, but really we're looking at them together. So what is diversity and what is inclusion? Oftentimes, these terms are used together, or interchangeably, but they're not the same. They are different. Diversity is the mixture of individuals in society, while inclusion is allowing that mixture to exist and work well together. Diversity recognizes that everyone is different. Some differences people are born with and cannot be changed. In simple terms, diversity is the mix and inclusion is getting the mix to work well together.
All Communication is Filtered Through Your Cultural Perspective
Figure 2. Cultural Perspective.
All communication is filtered through your cultural perspective. Cultural perspective refers to the way individuals are shaped by their environments, as well as social and other cultural factors. Each of us comes with a very unique story that shapes who we are and how we see the world. Take a look at some examples of cultural perspectives in figure 2. A few of these include economic status, family situation, communication style, personality, philosophical perspective, and even your geographic location. Can you think of other characteristics that are filtered through your cultural perspective?
Diversity is the mosaic of people who bring a variety of backgrounds, styles, perspectives, values, and beliefs as assets to the groups and organizations with which they interact. Diversity is any dimension that can be used to differentiate groups and people from one another. In a nutshell, it's about empowering people by respecting and appreciating what makes them different, in terms of age, gender, ethnicity, religion, disability, sexual orientation, education, and national origin. We can embrace and celebrate the rich dimensions of diversity contained within each individual, and place positive value on diversity in the community and in the workforce.
Primary & Secondary Dimensions of Diversity
Figure 3. Primary and Secondary Dimensions of Diversity.
The model in figure 3 illustrates both the primary and secondary dimensions of diversity that exert an impact on each of us at home, at work and in society. While each dimension adds a layer of complexity to individual identity, it really is the dynamic interaction among all the dimensions that influences self-image, values, opportunities, and expectations. Together, these primary and secondary dimensions of diversity give definition and meaning to our lives by contributing to a synergistic integrated whole, diverse person.
So even within this model, you can see that there are different characteristics that may differentiate you from or connect you to others. Let's look at communication style. Some of these things aren't immediately apparent. As human beings, we try to categorize, just like children do. We let a young child know this tiny furry four-legged thing is a cat, and then the child sees another four-legged thing, and that's a cat. We say, well actually no, that's a cow. Oh, okay, this thing is larger, so it's a cow. Then the next four-legged thing I see is a cow as well. Well no, that's a horse. Our human nature is to box things in. As adults, we don't escape that. We also try to label and categorize. The dimensions that are shown in the model in figure 3 give that quality as things that we also try to categorize and differentiate people on. We can't always know those things just by meeting someone or judging a book by its cover. For example, in the education part of it, when you read my bio, you read that I have advanced education, but that is not because I come from a history of people with advanced education. I am actually first-generation college in my family. Think about geographic location. While I currently live in the Midwest, I actually grew up in Chattanooga, Tennessee, so you may hear that in my accent. These are just a couple of examples of things that we can't necessarily peg from the beginning. That can often put us in a place of trying to differentiate from people when really we don't know what's going on yet.
We talked about diversity, so let's talk about inclusion next. Inclusion is the achievement of a work environment in which all individuals are treated fairly and respectfully, have equal access to opportunities and resources, and can contribute fully to the organization's success. Without inclusion, the crucial connections that attract diverse talent, encourage their participation, foster innovation, and lead to business growth, won't happen. When I'm talking about attracting diverse talent, I'm talking about you, the employee, the person who shows up to work and gives it your all every day. We want a diversity of people, and we know that in early childhood representation matters as we try to utilize very diverse books and show a representation of different races and different genders. That's true also in the workplace. Inclusion is not something that you end on, and call it done. We don't say, okay, great, well we have a diverse mix of people that we have included in these books, so we're done. Or we have a diverse mix of people that we have included in our workforce, and we're done. Really it's a process that you work at every single day.
The goal here is to make full use of the unique skillsets that you have. Take a moment and reflect. Do I bring my "full self" to work? Do you bring your ideas, your opinions, your background, your personality, and what makes you unique? Can you bring your full self to the workplace? If we work in a supportive environment and embrace our uniqueness, we can do that. In order to bring your whole self to the workplace, you need to fully embrace who you are. A workplace that acknowledges bringing your whole self to work doesn't mean you're signing your soul over on the dotted line. Your whole self is still entitled to privacy and some time off as well. We want those unique ideas, opinions, backgrounds, and personalities. All those things make you yourself and that is how we bring our full self to work. I want you to take a moment to reflect. In order to truly accept differences, we must ask ourselves exactly what these differences are. So in this course, we're talking about differences in people for diversity training purposes. Take a moment to imagine people who are different from you and answer this question.
The people who are different are different from what?
The answer is most likely different from me. The answer might also be different from the norm, in which that case, you've got to ask yourself, well what is the norm? Think about people who are different from you, and then describe yourself in detail. In this description, include values and beliefs that you have and different characteristics about yourself. For example, if you were thinking people who are different from me are male, then you would write I am female. If you are thinking people who are different from me are not Muslim, then you would write I am Muslim. Take a moment and reflect and describe yourself.
Now consider the importance of each of those characteristics, values, and beliefs you used to describe yourself. For example, if you wrote, "I am very _____ politically," consider how important that is to you. Go back to that list of characteristics, values, and beliefs, and put one star by characteristics that are somewhat important to you, two stars for moderately important characteristics, and three stars for very important characteristics. Now, think about how these ratings you placed on characteristics, values, and beliefs influence your interactions with others. Do they influence your interactions with others, and if so, how? Then think about if those things carry over into the workplace.
Barriers to Accepting Diversity
- of change
- of loss or inconvenience
- of embarrassment
Thinking about those different pieces, let's take a look at barriers to accepting diversity. Often there's fear of change, of loss or inconvenience, and maybe embarrassment. What other ones can you think of?
How do Stereotypes and Prejudices Impact the Workplace?
Do you think that stereotypes and prejudices impact the workplace? How, or why not? Let's look at an example of this. A young executive assistant who dresses in short skirts might get compliments and she may even get hit on at the office. People may assume that because she has a bubbly personality that she isn't very smart. Is this an example of stereotyping and prejudice? The answer to that is yes.
Stereotypes and prejudices are frequently based on past experiences and backgrounds:
- Family’s beliefs
- Environment growing up
- Diversity in the neighborhood
- What else?
How do stereotypes and prejudices impact the workplace? They are frequently based on past experiences and backgrounds. That could come from family beliefs, the environment you grew up in, the diversity of the neighborhood you grew up in, school relationships, and maybe there are some other things you can think of. For example, I grew up in a very small town in the country. My neighbors were not immediately accessible. The interaction that I had was often at school. During my elementary school years, the diversity makeup of the students was not very diverse at all. But then when I went to high school, I went to a school that was 98% African American and 2% other, so maybe 1% White and 1% of different racial and ethnic backgrounds. That really shaped and opened me up to a new world that I didn't know before and shaped and turned the way I looked at the world. I took some of those early experiences and it helped me see things differently.
Prejudices are negative beliefs about others that we have learned. The definition of prejudice is an unfavorable opinion or feeling without knowledge, thought, or reason. It could be any preconceived opinion or feeling either favorable or unfavorable, unreasonable feelings, opinions, or attitudes, especially of a hostile nature regarding an ethnic, racial, social, or religious group. Prejudices are negative beliefs about others that we have learned. When we let our prejudices control us, we do great injustice to ourselves and others. Today we're talking about getting past those prejudices or negative beliefs so that we can have a diverse understanding of one another. There could be behavior that stems from the prejudice that does a lot of harm to the places we work, to others, to ourselves. You may not realize this, but we can be held personably liable for our actions that stem from prejudice, so we have to make sure that our actions do not harass, or demean others. We can mitigate diversity issues with effective communication by listening, clarifying, and taking the time to think before speaking.
Keys to Cultural Competence
Here are some key ideas to help us do that. These are what we'll call keys to cultural competence.
- Respect others’ opinions.
- Acknowledge cultural/generational differences and historical injustices without becoming defensive.
- Be open to learning about other cultures and ideas.
- Give others the benefit of the doubt in a dispute.
- Seek first to understand others’ points of view; then to be understood.
- Don’t stereotype.
- Don’t judge others by your own cultural standards.
- Don’t assume your culture’s way is the only way.
- Don’t talk down to anyone; communicate effectively.
It's interesting because these particular concepts sound a lot like what we do in the classroom with children. For example, we teach respecting the opinion of others, acknowledging differences, being open to learning from others, and giving the benefit of the doubt in a dispute. We teach these skills to our children about how to communicate effectively and they are also being mirrored here.
Why Diversity Training?
So why are we having diversity training? It's the building blocks of a respectful workplace. A respectful workplace is a safe place of employment where we as employees are valued, recognized, appreciated, treated fairly, have clear expectations, and can work harmoniously with one another. That's a lot, but that's what we need in order to do our job and do it well. The benefits of a respectful workplace include better moral for everybody. I know that I feel better and I can do more and work with a team. I'm going to show up when I feel these things in my workplace, so it will lower absenteeism and lower turnover of staff. We know that's a constant that we have in early childhood. Having this network of a supportive workplace really helps with that and you can be part of that solution. Also, it reduces things to do with worker's compensation claims, and provides a better ability to handle change and recover from problems. Work may seem less honorous and there's improved productivity. I know that I'm more productive when I feel good showing up for work. The bottom line is that employees are retained and better staff is employed when we have a respectful and diverse workforce.
Diversity is only FAIR
- Feedback/communication promotes understanding, reduces conflict; and enhances productivity.
- Assist others to become culturally competent; support one another – we are all in this together!
- Inclusion should be practiced; empower employees to fully perform and participate in pursuit of the organization’s mission.
- Respect is non-negotiable; honor the social contract.
Let's summarize our discussion about diversity by talking about the acronym FAIR. F is for feedback. It's intended to denote the idea that it is just as important to hear and listen to others as it is to be heard. Actually, this is a hallmark of what communication does at its best, namely that it allows all parties to be heard. The A is for assistance and is simply intended to convey the idea that it is vital that a workplace imbue a disposition toward helping others, or serving. This doesn't mean just our customers or clients, so not just the parents and the children, but the people we work with as well, our colleagues, our supervisors, and people that we supervise. The I for inclusion emphasizes the idea that to make the workplace function optimally it is imperative that everybody feel a genuine sense of belonging in the place where they work. Finally, the R is for respect, which is a subjective term, but requires that each individual's perception of what it means to be respectful be taken into account. Think about diversity in terms of fair. F for feedback communication that promotes understanding, reduces conflict, and enhances productivity. A is to assist others to become culturally competent and support one another because we are in this together. Inclusion should be practiced to empower employees to fully perform and participate in pursuit of the school's mission as we do what's best for the kids. Respect is non-negotiable. We're going to honor that social contract between us.
Harassment can be based on:
- National Origin
- Genetic Information
We talked about diversity and inclusion. It's not just the right thing to do, but discriminating against people is a form of harassment, and harassment can be illegal. Harassment becomes unlawful where enduring the offensive conduct becomes a condition of continued employment or that conduct or behavior is so severe, or pervasive enough, that it creates a work environment that any reasonable person would consider intimidating, hostile, or abusive. Harassment that's based on any protected characteristic is illegal, and we're going to look at that next. I think we most commonly think of sexual harassment when we hear the word harassment, but other forms of harassment are prohibited as well and that ties into that discrimination piece. Harassment can be based on race, color, sex, religion, national origin, age, disability, genetic information, and others. If we're looking at harassment related to some of these protected statuses, such as national origin, it's illegal to discriminate based on an employee's birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. When I say employees, I'm talking about all of us, so think of colleagues, coworkers, people you supervise, your supervisors, or anyone we work with.
For example, it would be discriminatory harassment to require anyone we work with to speak only English unless the employer can show that the requirement is necessary for conducting business. In terms of disability, the ADA prohibits workplace discrimination on the basis of disability. So illegal harassment occurs when a worker with a disability is constantly subjected to pervasive and severe harassment due to his or her disability which would result in a hostile work environment for the employee. It's illegal to discriminate on the basis of gender, gender identity, or sexual orientation. Requests for sexual favors in exchange for preferential treatment and workplace conditions that create a hostile environment for persons of either gender constitutes sexual harassment. Pregnancy-based discrimination also falls under sex discrimination. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions and not be used for discriminatory treatment. Harassment for this protected status, for example, would be ridiculing an employee for her appearance during pregnancy.
The ADEA protects individuals who are 40 and older from discrimination. An example of harassment based on age would be referring to an older worker as "gramps" or "granny" thus creating a hostile work environment. It's illegal to discriminate on the basis of race or color. Things such as slurs or jokes, offensive or derogatory comments, or other verbal or physical conduct based on employee's race or color constitute discriminatory harassment. An employer cannot discriminate based on an employee's religious beliefs or practices. Harassment based on religion occurs when an employee is antagonized or ridiculed because of his or her religious, moral, or ethical beliefs. Another type of religious harassment occurs when a coworker or supervisor preaches or proselytizes to an employee and an employee perceives that behavior to be unwanted and offensive amounting to a hostile work environment. These anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation proceeding, or a lawsuit under these laws, or for opposing employment practices that they reasonably believe discriminate against individuals and are in violation of the law. To summarize that, it's illegal to be retaliated against.
Illegal harassment can be:
We really want to avoid initiating or participating in any behavior that may be misconstrued as possible harassment, including anything that is verbal, visual, physical, or written. Verbal includes unwelcome comments, yelling, or offensive jokes or stories. Visual includes offensive pictures, photos, cartoons, posters, calendars, magazines, or objects. Physical includes unwelcome touching, hugging, kissing, stroking, ogling, or suggestive gestures. Written includes unwelcome letters, notes or emails or social media posts of a personal nature.
When you think about electronic means, you might think of the word cyber. You have likely heard of cyberstalking or virtual harassment and I'd like to break those down for you. Virtual harassment is harassment through a social media site, for example, friending a coworker on Facebook, and then sending offensive messages or repeated requests for a date. Textual harassment is harassing, intimidating, or inappropriate text messages. Sexting is sending sexually explicit or offensive photos or videos via any type of electronic media. Cyberstalking is harassing an employee by following him or her on blogs, posts, and social websites. These things can be used as a platform where the court of public opinion gets involved against an employer and it can really complicate prosecution for sexual harassment claims and assault. So stay out of those different cyber types of harassment.
In regards to electronic harassment, consider the following electronic workplace guidelines:
- Think before you type and before you hit send.
- Never hide behind email to air frustrations.
- Consider the tone of all electronic correspondence, whether that's emails, texts, et cetera, very carefully. Avoid insults and being condescending in nature.
- Be polite and respectful at all times, especially when you're interfacing electronically as it's hard to discern tone through written text.
- Remember that your electronic correspondence (emails, texts, etc.) is not private and lasts forever.
Hostile Work Environment
Harassment becomes unlawful where:
To recap, discrimination and harassment create a hostile work environment and harassment becomes unlawful where enduring the offensive conduct becomes a condition of continued employment or that conduct is severe or pervasive enough to create a work environment that any reasonable person would consider intimidating, hostile, or abusive. Some examples of what a hostile work environment might look like include:
- Degrading comments
- Sexual propositions
- Vulgar language
- Sexual touching
- Embarrassing questions
- Sexual or racial jokes
I mentioned the term reasonable person earlier. That term is referring to the reasonable person standard where the perception of the alleged victim takes precedence over the intention of the accused. In other words, it's the victim's point of view that determines harassment on whether the behavior is welcomed. The determination of harassment is based on whether the invitation to engage in the activity was unwelcome, not on whether the victim voluntarily participated. It's important to think about how a third party might perceive your actions or behavior, because some comments may simply be inappropriate. It's not about the intent, it's about the impact. Think about the potential effects of your actions on others.
What is employment law? Some of the employment laws protect employers and employees from discrimination, harassment, and hostile work environments. Your employment looks very different than it would have 55 years ago. Many employment laws, such as minimum wage laws, the number of hours employees can work, workplace safety, and child labor were all enacted as protective labor legislation. Landmark civil rights and labor laws were enacted in 1964 and those were followed by other laws to protect the US workers. We are going to be looking at some of these.
Employment law is often referred to as labor law, and it consists of thousands of federal and state statutes, administrative regulations, and judicial decisions. Don't worry, we're not going over all of those, we're just going to touch on a few major ones. Some of the major areas primarily regulated by the federal government are wages and hours worked, safety and health standards, health benefits, retirement standards, worker's compensation, work authorization for non-US citizens, working conditions, and equal opportunity employment. Many laws are specific to certain industries such as agriculture, mining, and construction, just as we have certain regulations that are very specific to early childhood.
Let's look at some of those laws that prohibit discrimination. Know that what we're looking at in employment law is the collection of laws and rules that regulate relationships between employers and employees. Let's start with some brief information on some of these. Title VII of the Civil Rights Act of 1964 is a landmark civil rights and US labor law in the United States that outlaws discrimination based on race, color, religion, sex, or national origin. It prohibits unequal application of voter registration requirements and racial segregation in schools, employment, and public accommodations.
So Title VII of the Civil Rights Act makes it illegal to discriminate against someone based on those factors mentioned, race, color, religion, national origin, and sex, and it also makes it illegal to retaliate against a person because the person complained about discrimination, or filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. This law also requires that employers reasonably accommodate applicants and employees sincerely held religious practices unless doing so would impose an undue hardship on the operation of the employer's business.
The Pregnancy Discrimination Act of 1978 is also covered under sex discrimination. The Pregnancy Discrimination Act amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law also made it illegal to retaliate because a person complained about things related to that. This group of laws covers all aspects of the employee/employer relationship, which would include things in the hiring, firing, compensation, or any other terms or conditions, or privileges of employment on the basis of any legally protected status. These laws prohibit the employers they cover from limiting, segregating, or classifying employees in a way that would tend to deprive someone of employment opportunities, or adversely affect his or her employment status.
The Equal Pay Act of 1963 it illegal to pay different wages to men and women if they perform equal work in the same workplace. The law also makes it illegal to retaliate, as we talked about before. The Equal Pay Act was an effort to correct a centuries-old problem of gender-based wage discrimination. It was signed into law by President John F. Kennedy. Despite the fact that women made up almost 58% of the labor force in 2012, they still made only 77 cents for every dollar a man made. The Paycheck Fairness Act was passed by the House on March 27, 2019, as the latest in a series of attempts to make sure men and women are paid equally. This bill was first introduced in 1997. Today women who work full time in the US make, on average, 82 cents for every dollar their male counterparts make. Progress has definitely been hampered in a number of ways though. There are several reasons for the pay difference. One, women are often less likely to negotiate pay and more likely to be penalized when they try. They are also more likely to choose career fields that pay lower salaries and are often pushed out of the highest paying professions in the country, which reward workers who put in long hours. That kind of schedule disproportionately hurts working moms. After taking education, occupation, and work hours into account, researchers say that discrimination could explain about a third of the pay gap. The Equal Pay Act says employers can't differentiate salary based on gender unless a number of factors, including seniority, merit, and work level, come into play. It really makes a lot of sense, because a new entry-level employee would not be paid the same as a higher-level employee with more experience.
The Age Discrimination in Employment Act (ADEA) of 1967 protects people who are age 40 and over from discrimination because of age. This law also makes it illegal to retaliate against a person as well. The ADEA's protection applies to other employees and job applicants. Even though the Age Discrimination in Employment Act was signed into law over a century ago, some employers have not been deterred from making employment decisions based on a worker's or jobs, job applicant's age. It's important to know that these particular laws offer a lot of information about how you are protected according to the Equal Employment Opportunity Commission (EEOC), making it illegal for employers to discriminate against you based on these protected classes, and even in the process of hiring, not just once you are hired.
The Americans with Disabilities Act (ADA) of 1990 makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law makes it illegal also to retaliate, as we have talked about. It requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless doing so would impose an undue hardship on the operation of the employer's business. There was a change effective March 15th, 2011, where businesses are required to modify their business policies and procedures when necessary to serve customers or clients with disabilities and take steps to communicate effectively with customers who have disabilities. I want to point out the reasonable accommodation piece here. That's any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions. The key there is reasonable. Another amendment you should know about is the ADA Amendment Act of 2008, known as the ADA Restoration Act. It dramatically broadened the number of individuals that are considered disabled.
Protection Under ADA
- Retaliate against an employee
- Fail to provide a reasonable accommodation
- Ask an employee whether he or she is disabled
- Require a medical examination
- Require a disabled person to be the only one
You are protected under ADA and some federal laws. Let's review those protections. It is unlawful to retaliate against an employee for asserting his or her rights under the law. It is unlawful to fail to provide reasonable accommodation. It is unlawful to ask an employee whether he or she is disabled or anything about the nature or severity of the disability. It is unlawful to require an applicant who is disabled to take a medical examination before a job offer if you're not requiring it of everyone or require a disabled person in a job category to be the only one in the category to be required to take the medical examination. All must be required, or none, based on the job-related factors and needs of the business.
There are some other laws to note that you can also read about. Sections 10 and 103 of the Civil Rights Act of 1991 made some amendments to Title VII in the ADA to permit jury trials and compensatory and punitive damage awards in discrimination cases. Sections 501 and 505 of the Rehabilitation Act made it illegal to discriminate against a qualified person with a disability in the federal government. There's also the Genetic Information Nondiscrimination Act of 2008 (GINA) which makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about any disease, disorder or condition of an individual's family members (i.e. an individual's family medical history). Below is a list of other employment laws enforced by the Federal Department of Labor.
Laws Enforced By the Department of Labor
- Consumer Credit Protection Act (CCPA)
- The Employee Polygraph Protection Act (EPPA)
- Employee Retirement Income Security Act (ERISA)
- The Fair Labor Standards Act (FLSA)
- The Fair Labor Standards Act (FLSA)/Child Labor
- The Family and Medical Leave Act (FMLA)
- The Immigration and Nationality Act (INA)
- The Occupational Safety and Health (OSH) Act
- Uniformed Services Employment and Reemployment Rights Act (USERRA)
- Whistleblower Protection Provisions
- Worker Adjustment and Retraining Notification Act (WARN)
Family Medical Leave Act (FMLA)
The Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid job-protected leave for specified family and medical reasons with continuation of group health insurance coverage, if that is offered by your employer, under the same terms and conditions as if the employee had not taken leave. There are some specifics here about what type of employer is involved in having to be part of FMLA. The employee must have been employed with a company for 12 months, must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave, and the employer has to have 50 or more employees in 20 or more workweeks in the current, or preceding calendar year, within a 75 mile radius of the worksite. Do be aware that many states have additional family leave laws. The FMLA entitles eligible employees of covered employers to take unpaid job-protected leave, to have a continuation of that group health insurance, and to be under those same conditions. In summary, this law is important for the individual, the family, and the organization. Your organization may be required to comply with this law and to administer it fairly.
Sexual harassment, as defined by the EEOC, is unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that affects an individual's employment, unreasonably interferes with his or her work performance, or creates an intimidating, hostile, or offensive work environment. We've seen it in the news, sexual harassment claims are on the rise, and they've certainly been highlighted throughout social media and news media. Our employers have continued to let employees know about sexual harassment and how to report sexual harassment.
There are two forms of sexual harassment. Quid pro quo and hostile work environment. Quid pro quo is a Latin term meaning this for that. An example of quid pro quo would be if Mary Smith receives a smaller pay increase based on performance than other employees with a similar performance because she refused to go out with her supervisor. The other type of sexual harassment, hostile work environment, would be any type of speech or conduct that is severe or pervasive enough to create an abusive or hostile work environment. An example of that would be if a coworker is leering at you and intentionally brushing against you.
Sexual harassment can occur in a variety of circumstances:
- Man or woman
- Supervisor, an agent of the employer, co-worker, or a non-employee
- Anyone affected
- Without economic injury
- Must be unwelcome
Sexual harassment can occur in a variety of circumstances. The victim, as well as the harasser, can be a man or a woman. The victim does not have to be the opposite sex. The harasser can be the victim's supervisor or it can be an agent of the employer, such as someone who's doing work for the school (maintains the grounds, pest control, etc.). It could be a supervisor in another area as it doesn't have to be your direct supervisor. It could be a coworker or it could be a non-employee, such as a parent. The victim does not have to be the person harassed either but could be anyone who's affected by the offensive conduct. An example of this is if I see it take place but it's not directly happening to me. Unlawful sexual harassment may occur without any type of economic injury to the victim, and the harasser's conduct must be unwelcome.
Will I know it when I see it? A good rule of thumb to ask yourself is if my spouse, parent, or child heard or saw this, either what it is I'm witnessing, or what it is I'm saying or doing, how would they feel about it? It's getting your mind to think of it in terms of a third party. Another way to think of that third party view party is would I want this behavior broadcast on the local TV news? That one can really shed some light on it because the courts view and evaluate sexual harassing behaviors through the eyes of the victim rather than the harasser.
Research shows that 90% of workers who say they've experienced harassment never report it. This is a really troubling statistic. It's important that all employees are treated with respect and dignity. Engaging in, condoning, or not reporting sexual harassment is in direct conflict with those values of respect and dignity, and we want to remain in compliance. It's not just our employer who needs to remain in compliance, we do too. We want to stay in compliance with that Civil Rights Act, Title VII, which prohibits sex discrimination, and we want to remain in compliance with similar state civil rights laws and fair employment laws.
Why do employees hesitate to report discrimination, workplace harassment, and sexual harassment? Often people will hesitate to report discrimination, workplace harassment, and sexual harassment out of fear, and fear really seems to be that operant feeling on the part of those victimized. It might be fear of losing their job, fear of retaliation, fear of getting someone into trouble, fear of disrupting the workplace, fear of being embarrassed, or fear of not being believed. These are the ones we hear most often.
- Firing, demoting, disciplining
- Allowing others
What I want you to know is there are certain behaviors that are prohibited, and maybe that will take away some of those fears. Prohibited behaviors include, as you've heard me say multiple times, retaliating against the complaining employee, firing, demoting, or otherwise disciplining the employee, threatening action that may be viewed as retaliatory, discussing the charge with other employees, unless it's specific as a confidential part of the investigation. It's also prohibited to allow others to retaliate against the complaining employee.
Prevention of Harassment
- Avoid protected characteristic related jokes, epithets, comments, and e-mails.
- Respect a person’s wishes when he/she indicates that conduct or attention is not welcome.
- Inform those engaging in offensive behavior that you find it objectionable.
- Report behavior that you believe qualifies as harassment.
So what do we do to prevent harassment? Employees are expected to maintain a productive environment that is free from harassing or destructive activity just as the employer is expected to maintain that. It's really important that we stand up and let people know that any form of harassment will not be tolerated. Avoid protected characteristic related jokes, epithets, comments, and emails. Respect a person's wishes when he or she indicates that conduct or attention is not welcomed. Make sure to inform those engaging in offensive behavior that you find it objectionable. A statement you can use is, "This is making me uncomfortable. Please stop ______ (fill in the blank of what that specific behavior is)." Definitely inform and then report behavior that you believe qualifies as harassment. Just to point out here, harassment outside the workplace may also be illegal if there is a link to the workplace. For example, if a coworker harasses another coworker while they're driving to an offsite training, that is a link to the workplace.
Other ways of preventing harassment include:
Avoid initiating or participating in any behavior that may be misconstrued as possible harassment which includes:
- Verbal - unwelcome comments, yelling, offensive jokes or stories
- Visual - offensive pictures, photos, cartoons, posters, calendars, magazines or objects
- Physical - unwelcome touching, hugging, kissing, stroking, ogling, or suggestive gestures
- Written - unwelcome letters, notes or emails, social media posts of a personal nature
Consider the following electronic suggestions:
- Think before you type & before you hit send.
- Never “hide” behind email to air frustrations.
- Consider the tone of all emails very carefully; avoid insults & being condescending in nature.
- Be polite and respectful at all times, especially when interfacing electronically.
- Remember that emails at work are not private…they last forever.
Again, think about those electronic suggestions that we talked about from earlier. This can even be applied to conversations. Think before you type and before you hit send. Think before you say it. How is this going to be perceived by the person receiving it? How is this going to be perceived by others who hear it? Never hide behind email to air frustrations. I would say as far as face to face communication, avoid the passive-aggressive. Consider the tone of all emails very carefully. Consider the tone of how you're speaking to others. Avoid insults and being condescending. Think about being polite and respectful at all times. These are the things we're teaching to our children and we need to model that. Definitely think about it as you're interfacing electronically because it's really hard to discern people's tones in electronic means. Remember the emails at work are not private. They last forever.
How do we prevent harassment, discrimination, and creating a hostile work environment? We model that workplace civility at all times. Let's recap here. What does that look like? It means you have to speak up. Really, it's a safety issue when we're talking about discrimination, harassment, and sexual harassment. If I were to violate some type of safety policy at the school, you'd say something. You wouldn't let me walk in and put the children in harm, would you? No, of course not. We're not going to walk in and let others put our coworkers in harm's way either. If you shift it in your mind as a term of safety, then you can think about it in those ways as well. We want to speak up about harassment. Even though it's hard to do, responses can be very direct. "Hey, this is making me uncomfortable. Please stop ______ (fill in the blank of what that specific behavior is)." Then report that behavior to your supervisor and/or human resources immediately. You want to do that before it escalates.
Really what it boils down to is respect. Federal and state employment laws protect all employees from discrimination and harassment on the basis of our membership in any of 17 protected classes, which includes some of the ones we touched on today, like race, color, religion, sex, national origin, age, and disability. Unlawful harassment can include physical, verbal, or non-verbal conduct or inappropriate visual displays. Any type of harassment demonstrates a lack of respect for one's colleagues. By treating our colleagues and the people we serve, the children and the parents, with the respect they deserve, we can really stay on the safe side of the line. Avoid any sexual, racial, ethnic, cultural, age, or disability-related jokes, epithets, comments, emails, and respect a person's wishes when he or she indicates that that conduct or attention is not welcomed. You may hear it from others, this makes me uncomfortable when you do the following thing, please stop. Definitely inform those engaging in the offensive behavior that you find it objectionable. If you receive that as feedback, think about how your actions may have affected somebody else. Always report any behavior that you believe qualifies as harassment, and do it early. If your organization knows about it, they have the responsibility to act on it. I hope that this has helped to provide you with some background of the rights that you have as an employee and those employment laws that relate to you.