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What is the definition of discrimination, discriminatory harassment and retaliation?

Updated  by rprescott
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Summary

Definitions of discrimination, discriminatory harassment and retaliation

Article

  1. An intentional or unintentional act that adversely affects employment and/or educational opportunities because of a person's membership in a protected class or association with a member (s) of a protected class. Discrimination may be classified as either disparate impact (facially neutral practices that fall more harshly on one group than another and cannot be justified by business necessity) or disparate treatment (treatment of an individual that is less favorable than treatment of others based on discriminatory reasons). A single act of discrimination may be based on more than one protected class status. For example, discrimination based on anti-Semitism may relate to religion, national origin, or both; discrimination against a pregnant woman might be based on sex, marital or parental status, or both; discrimination against a transgender individual might be based on sex or sexual orientation.

 

Discriminatory harassment. A form of unlawful discrimination including verbal and/or physical conduct based on legally protected characteristics and/or membership in a protected class that:

 

 

1. has the purpose or effect of creating an objectively intimidating, hostile or offensive work or educational environment;

 

 

 

2. has the purpose or effect of unreasonably interfering with an individual's work or educational opportunities; or

 

 

 

3. otherwise unreasonably adversely affects an individual's employment or educational opportunities.

 

 

Reasonable directions or warnings by authorized University personnel as to the time, place and manner in which employees perform their assigned responsibilities, students carry out their educational assignments or program participants engage in sponsored activities do not constitute evidence of discriminatory harassment under this Policy.

 

For purposes of this Plan, unwelcome conduct constitutes hostile environment harassment when:

  •         it is targeted against a person on the basis of his/her membership in a protected class;

AND

 

  •         it is sufficiently severe or pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, hostile or offensive; OR
  •         submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or education; OR
  •         submission to, or rejection of, such conduct by an individual is used as a basis for academic or employment decisions affecting that individual.

 

The determination of whether an environment is "hostile" is based on the totality of the circumstances. These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating. Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to hostile environment harassment under this Plan.

 

For emphasis, conduct that is not based on a person's membership in a protected class is not considered hostile under the Equal Opportunity, Diversity and Affirmative Action Plan.

 

  1. Taking adverse employment or educational action against a person who: (a) files claims, complaints or charges under this Plan, or under applicable local, state or federal statute; (2) is suspected of having filed such claims, complaints or charges; (3) has assisted or participated in an investigation or resolution of such claims, complaints or charges; or, (4) has protested practices alleged to be violative of the non-discrimination policies of the University, the BHE, or local, state or federal regulation or statute. Retaliation, even in the absence of provable discrimination in the original complaint or charge, constitutes as serious a violation of this Plan as proved discrimination under the original claim, complaint or charge.