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Annoucements, Guest Blog

Creating Policy Prohibiting Discrimination and Harassment

By Tess Zachary

Introduction

I think most people would agree that Harassment and Discrimination are inappropriate in any setting, but many people struggle with exactly what that means except for the most extreme and egregious examples. Harassment and Discrimination are not just nebulous concepts that can be handled in casual ways.  Dealing with this kind of destructive behavior is something that must be done deliberately and with thoughtfulness.

Not only is creating policy prohibiting Discrimination and Harassment the right thing to do, but having effective and reliable anti-Harassment and anti-Discrimination policies can help your organization in many ways – and can carry serious real-world consequences for failing to create reliable policy.

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Harassment

Harassment is complex, and a policy prohibiting harassment has to be clear, and in strong language. The primary goals of the policy are to:

  • Provide an environment free from harassment by ensuring that the organization is notified of, and can promptly correct, harassing conduct.
  • Communicate clearly that the organization will not tolerate harassing behavior.
  • Address harassing conduct and hold people accountable at the earliest possible stage, before the conduct becomes “severe or pervasive,” i.e., harassment within the meaning of anti-discrimination law.

A Policy Prohibiting Harassment achieves these goals by:

  • Defining unacceptable conduct that violates the policy.
    • Define harassment and clearly outline what is prohibited: Leave as little room for ambiguity and interpretation as possible. Be specific.
  • Outlining the rights and responsibilities of anyone to whom the policy applies.
    • Who the policy applies to: Attendees, members, staff, volunteers, directors, employees etc.
  • Establishing reporting procedures and accountability measures.

Here are some common behaviors and specific examples of harassment:

Behaviors: Direct insults, threats of harm, bullying, victimization, offensive discussions and gestures, spiteful gossip, stalking, following etc.

  • Derogatory or condescending comments or teasing regarding a person’s heritage, religion, or beliefs.
  • Unwanted sexual advances and threats or posing questions of an intimate nature without consent or after being told “no”.
  • Physical threats or assault.
  • Improper or unwanted touching.
  • Outbursts of anger and destruction of property.
  • Making offensive sounds or gestures toward someone.
  • Distributing inappropriate sexual material or discriminatory photos, videos, or internet postings.
  • Spreading malicious rumors to discredit someone.
  • Sabotaging or destructively interfering in the work of others.
  • Singling someone out to do demeaning tasks unrelated to their job.
  • Take online/remote harassment into consideration: Your policy should consider that the prohibited behavior not be  limited to in-person situations but also apply to online/remote interactions.

Discrimination

Discrimination is well defined in law, and there are many resources to help us craft these policies. Conventional wisdom is to (in any kind of organization) cite the laws and agencies that describe discriminatory characteristics and to comply with those, and any future updates of those (which will keep you from revisiting every year).

Examples are:

Title VI of the Civil Rights Act of 1964

Section 504 of the Rehabilitation Act of 1973;

Age Discrimination Act of 1975

Centers for Disease Control: Types of Discrimination 

EEOC Types of Discrimination

Have strong language about confidentiality and protection from reprisal in your policies:

You must handle discrimination and harassment claims discreetly. You should share the details of the incident and the investigation on a need-to-know basis only. Warn all those involved against discussing the circumstances with anyone else. This also includes revealing the particulars to trusted colleagues who are not participating in the inquiry.

Maintaining as much confidentiality as feasible will guard the integrity of the process and keep trust intact.

Your anti-harassment policy and procedures must also protect people against retaliation. Those who report misconduct or cooperate in the investigation should not be adversely affected either directly or indirectly. They should not feel as if they are being intimidated or punished. Retaliation itself is a form of harassment and cannot be allowed.

Your Complaint Process

Describe your complaint process clearly:

Who, what, when, where, why, and how. Explain in detail. Give timeframes and expectations for the process. Immediately acknowledge receipt of the complaint. When you acknowledge, remind them of those time frames.

Make it accessible for complainants:

Make as many avenues for complaints as possible. There are many options: online, email, phone, in-person, mail… Choose one or more and then make them accessible. A printed form hidden in someone’s desk is not accessible. An online form not available to screen readers is not accessible. Generally, the right answer lies in providing a couple of avenues and preparing those in thoughtful ways.

Be prepared to work outside the process if someone needs accommodation. It is more important that you know rather than HOW you know.

Provide prompt, thorough, and impartial investigation:

I mentioned before that you can give yourself some time before you begin an investigation. However, that time is days…not weeks or months. Make this a priority. Hold yourself to your published timeframes.

Give Your Policies Teeth

In both anti-harassment and anti-discrimination policies, make sure there are consequences outlined. Apply those consequences consistently-regardless of the people involved.  Those consequences should be severe enough that it reinforces your cultural expectations, and broad enough that each situation can be evaluated fairly.

Be consistent in applying your policy:

Standardized and uniform implementation of procedures is fundamental to having an effective anti-harassment policy.

Follow the complaint process you’ve outlined in your policy not only for investigation but also regarding the consequences and how you communicate the investigation results.

Adhere to the process for every claim of harassment, regardless of the circumstances. For example, don’t be tempted to brush off someone who has a history of prior complaints. You are obligated to refrain from forming an opinion or passing judgment based on your previous interactions with this person.

Sample Policy: Prohibition Against Discrimination and Harassment

Introduction

(ORANIZATION) is committed to maintaining an environment that is free from illegal discrimination and harassment. Any staff, volunteer, or attendee who engages in discriminatory or harassing conduct is subject to removal. Complaints alleging misconduct will be investigated promptly and as confidentially as possible by (Management/Ombuds/HR/ETC).

If harassment or discrimination occurs during (EVENT/ORG/MEETING ETC), that person may be immediately removed. (ORANIZATION) may then discuss the going-forward steps that should be taken regarding the discrimination or harassment.

(ORANIZATION) shall not discriminate against any person in the hiring of personnel, election of Board members, appointment of volunteers, provision of service to the public, the contracting for or purchasing of services or in any other way, on the basis of race, color, sex, national origin, disabling condition, age, gender, sexual orientation, mode of sexual expression, or any basis prohibited by law. This policy against discrimination includes, but is not limited to, a commitment to full compliance with Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975, and any subsequent amendments to these statutes.”

Anti-Harassment Policy Statement
  1. This policy applies to all attendees (including staff, volunteers, vendors, and employees) who bully or harass others.
  2. (ORANIZATION) will not tolerate harassment of any kind. A confirmed complaint of harassment will result in disciplinary action, up to and including removal from events, removal from position, and banning from future events.
  3. This policy will be distributed to everyone associated with (ORANIZATION) and posted on our website.
  4. Individuals that report bullying or harassment in good faith are protected from retaliation by (ORANIZATION). Retaliation includes but is not limited to discipline, removal, further acts of discrimination, or other adverse actions when those acts are intended to punish for reporting harassment, opposing discrimination, or filing or assisting with a complaint to (ORANIZATION) or outside agencies.
  5. (ORANIZATION) will promptly investigate complaints of bullying, harassment, or retaliation. Such investigations will be fair and impartial.
Definitions

Bullying is verbal or physical conduct that seeks to harm, intimidate, or coerce another person. Bullying is not necessarily based on a person’s membership in a protected category like race, sex, age, or disability, among others. 

Stopbullying.gov defines Cyberbullying as bullying that takes place over digital devices like cell phones, computers, and tablets. Cyberbullying can occur through SMS, Text, and apps, or online in social media, forums, or gaming where people can view, participate in, or share content. Cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else causing embarrassment or humiliation.

Harassment is persistent and unwelcome conduct because of any of the bases protected by law (race, sex, age, disability, etc.). whenever:

  • Submission to harassing conduct is made, either explicitly or implicitly, a term or condition of an individual’s participation or enjoyment of (ORANIZATION)
  • Submission to or rejection of such conduct is used as the basis for a decision about anyone’s participation in any aspect of (ORANIZATION)
  • The conduct creates an intimidating or hostile environment.

Sexual harassment is one type of harassment and includes unwelcome sexual advances, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. Unwelcome verbal or physical conduct of a sexual nature includes the repeated making of unsolicited, inappropriate gestures or comments without consent, or after a “no” has been received.

Stalking is a pattern of repeated and unwanted attention, harassment, contact, or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear.

Recognizing Harassment

It is impossible to list every type of behavior that can be considered bullying or harassment in violation of this policy. In general, any conduct that could interfere with an individual’s enjoyment or participation of (ORANIZATION) is forbidden. This is the case even if the offending person did not mean to be offensive.  Even mild offensive conduct can be considered bullying or harassment if someone has made it clear that it is unwelcome. Some examples include:

Verbal: Jokes, insults, and innuendoes; threats; degrading sexual remarks; whistling; cat calls; comments on a person’s body or sex life; or pressures for sexual favors; participating in derogatory or insulting gossip.

Non-Verbal: Intimidating or confrontational body language; gestures, staring, touching, hugging, or patting; blocking a person’s movement; standing too close; brushing against a person’s body; display of sexually suggestive or degrading pictures; racist or other derogatory cartoons or drawings.

What is NOT harassment:

  • The one-off inappropriate joke or remark: One sexual joke or lewd remark is not harassment. It’s also not illegal to compliment someone on their clothing. Of course, if that one comment is the starting point for further sexual comments or actions due to those persons legally protected class, this could become harassment. If someone asks you to stop, stop.
  • If someone asks someone on a date once, that is not harassment. However, when one party communicates that they are not interested, repeated asks for dates would be viewed as harassment.
  • Sometimes people get angry at being corrected and rules or process at an event, claiming that this is harassment. Sometimes the person who is correcting may be rude or disrespectful, but that is still not harassment.
  • Sometimes people believe that it’s harassment when they are being disrespected in some way. A social slight is not harassment.
  • It is not harassment if someone speaks about their own experience. For example, discussing their own abuse or consent violation.

Anti-Discrimination Policy Statement

(ORANIZATION) management, staff, volunteers, members and participants are expected to comply with the spirit and intent in which this is presented. This policy against discrimination includes, but is not limited to, a commitment to full compliance with- 

Title VI of the Civil Rights Act of 1964;

§2000d Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color or national origin.

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Section 504 of the Rehabilitation Act of 1973;

No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Development Disabilities Act of 1978. Copies of any proposed regulations shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date of which such regulation is so submitted to such committees. See also 29 CFR Part 32 and 29 CFR Part 37

Age Discrimination Act of 1975

Section 6102. Prohibition of discrimination

Pursuant to regulations prescribed under section 6103 of this title, and except as provided by section 6103(b) of this title and section 6103(c) of this title, no person in the United States shall, on the basis of age, be excluded from participation, in be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.

For (ORGANIZATION), discrimination is the mistreatment and maltreatment because of one’s race, color, religion, national origin or ethnicity, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, relational status, sexual identity, educational status 

Centers for Disease Control: Types of Discrimination 

Responsibilities:

People who experience, witness or suspect discriminating or harassing behavior must report the behavior to (Management/Ombuds/HR/ETC). Those that feel comfortable directly intervening in situations where they perceive bullying or harassment are encouraged to do so.

(ORANIZATION) Responsibilities:

(ORANIZATION) staff who receive a complaint of discrimination or harassment, who observe such behavior, or suspect that such behavior is occurring have a duty to investigate the behavior and address it as necessary, or to report such suspected harassment to [Designee].

In addition to being subject to discipline if they engage in discriminating or harassing conduct, staff is subject to discipline for failing to report suspected harassment or otherwise knowingly allowing harassment to continue, or for engaging in retaliation or failing to report retaliatory acts.

Complaint and Investigation of Discrimination or Harassment:

(ORANIZATION) takes all reports of discrimination and harassment seriously. (ORANIZATION) will promptly and thoroughly investigate any complaint, information, or knowledge of discrimination or harassment. The investigation will be as confidential as possible. All persons involved, including complainants, witnesses, and alleged perpetrators may be required to cooperate in an investigation, will receive fair and impartial treatment, and will not be subject to retaliation for information disclosed to (ORANIZATION).

(ORANIZATION) will take any interim actions necessary to protect complainants from further acts of discrimination, bullying, harassment, or retaliation during the investigation.

(ORANIZATION) may review documents, interview people, or take whatever investigatory steps it deems necessary to determine whether discrimination or harassment occurred.

(ORANIZATION) will notify the complainant of the outcome of the investigation, although (ORANIZATION) may decline to reveal specific disciplinary actions taken where there are confidentiality issues with such disclosures.

External Remedies Available

Harassment because of a protected characteristic (race, sex, age, disability, etc.) is illegal under applicable local, state, and federal laws. Aside from (ORANIZATION)s internal process, attendees  may choose to pursue other reporting options and/ or other remedies with appropriate governmental entities at any time, including:

Sample Examples:

  • NCSF will take Incident Reporting for things that rise to the level of criminal such as stalking or outing.
  • EEOC
  • State Agencies