Last Reviewed: January, 2014
Discrimination and Harassment
Credit unions are comprised of employees with different backgrounds. With the advent of the internet and technology, the borders between cultures have collapsed. Employees need to understand and respect different employee values, races and ethnic backgrounds.
Sensitivity to other people’s differences is quite simple. Be nice. An employee cannot change the color of his or her skin or national origin. Consequently, to make fun of someone because of something s/he cannot change makes him/her feel unimportant and excluded.
A credit union has a responsibility to ensure all employees are not discriminated against based upon categories protected by law. Categories protected by law are an employee’s race, genetic information, sex, national origin, age, physical or mental impairments, sexual orientation, sexual identity, religion, and/or marital status and other categories protected by state law.
DISCRIMINATION AND HARASSMENT IN THE WORKPLACE
What is discrimination? Discrimination is treating someone differently because of something s/he cannot change, such as a person’s race, sex, national origin, age, religion, military status, genetic information, physical or mental impairments, or a category protected by state law, such as sexual orientation or sexual identity.
General Rules Regarding Discrimination
The following rules apply to discrimination/harassment:
- Comments not directed specifically at an employee may be actionable. Derogatory or inappropriate explicit comments made about other employees or women/men in general may be the basis for a claim;
- There are no minimum number of incidents required to establish discrimination. Discrimination can result from conduct which occurs once or over a period of time;
- Sporadic and isolated comments and/or conduct generally do not constitute actionable discrimination but it is considered inappropriate;
- Employees, supervisors, members, vendors, directors or other non-employees may subject an employee to inappropriate conduct and/or discrimination;
- The fact other employees do not find the conduct objectionable is irrelevant. It need only be considered inappropriate by the individual complaining;
- Intent is irrelevant – discrimination may exist regardless of whether the speaker was “just kidding”;
- If an employee asks to keep his reports of discrimination confidential, a supervisor must nevertheless report the conduct;
- An employee does not have to confront the alleged harasser regarding the conduct; and
- An employee is not required to put complaints in writing. If an employee informally complains about acts which may constitute discrimination a supervisor is responsible for informing Human Resources and/or putting the complaint in writing.
How is someone discriminated against? Discriminating conduct can exist in various forms, such as inappropriate comments or conduct. An employee is discriminated against if s/he experiences discriminatory conduct or comments based upon a protected category, such as race, religion, etc.
What is inappropriate conduct? Discriminatory conduct may consist of the following:
- Women are paid less than men for the same work;
- Individuals who are over 40 years of age receive more job responsibilities with no corresponding pay increase while younger employees receive pay increases. Older employees are terminated and replaced with younger employees, at a lesser wage;
- Pregnant employees are required to bring doctor’s notes more often than employees who have other illnesses; or
- Employees who take medical leave are disciplined because of use of statutorily proscribed leave time.
- Women receive increased job responsibilities with no corresponding pay increase while men receive pay increases for increased job responsibilities;
- A supervisor grants vacation based upon the exchange of sexual favors;
- An employee, vendor, member, or Director requests unwanted sexual favors or unwanted relationships;
- A supervisor screams at women and not men;
- Sexual assault;
- Requests for dates after employee states s/he is not interested;
- A supervisor threatens to terminate an employee if he does not have sex with his supervisor. The employee refuses and he is not terminated and he does not suffer any adverse consequences;
- Accessing pornographic or sexually explicit or implicit websites, sending or receiving pornographic or sexually explicit e-mails or cards;
- Threatening employees with intimidating words and actions;
- Sexual gestures with hands or through body movements; and/or
- Uninvited touching.
Inappropriate conduct may include the following:
- Hugging or kissing employees as a greeting;
- Giving back massages;
- Sexual gestures with hands or through body movements;
- Standing close or brushing up against another;
- Rolling eyes when women speak;
- Telling jokes based upon prohibited conduct; and/or
- Derogatory graffiti in bathrooms.
What are discriminatory comments? Comments may be inappropriate, regardless of whether an employee is just kidding or doesn’t intend to offend. Employees may not joke, make derogatory comments or identify an employee by his/her race, sex, age, national origin, religion, physical or mental impairments, marital status, sexual orientation, or sexual identity. What may be funny to you, may not be funny to others. A person’s sexual orientation or religion, for example, is irrelevant in the workplace.
Inappropriate comments based upon religion: Any comment about an employee’s religion is inappropriate – it is not relevant to work performance. The following comments may not be made:
- Commenting about an employee’s religion and stating she was a sinner and would go to hell;
- Calling someone a “Jew” or identifying an employee by his/her religion;
- Commenting no matter what another employee did to him, that God would love him and he would go to heaven, suggesting the employee would not;
- Sending an email to a Jewish employee stating Arabs and Muslims were mercenaries in eastern European countries and tortured Jews;
- Telling a Buddhist employee “to go back east” and telling others not to trust him because he was Buddhist;
- Calling someone a “Bible thumper”, “heathen”, “sadist”, “Satanist”; and/or
- Commenting negatively about an employee taking off for religious observance.
Appropriate comments based upon religion: An employee may inquire about the nature of an employee’s beliefs. For example, an employee may ask what is celebrated on Rosh Hashanah. Once an answer is given, an employee may not respond negatively.
Inappropriate comments based upon national origin: Comments about an employee’s national origin are inappropriate; where a person is born is irrelevant. The following comments are inappropriate:
- Asking employees to speak to members in Spanish, but then making fun of an employee when s/he speaks Spanish;
- Commenting about an employee’s “accent” or odor from ethnic food;
- Commenting that a Syrian person is a “camel jockey”, “rich Arab” and someone who could never drive a bus because he came from a land without motor vehicles;
- Identifying an employee by the country s/he was born. For example, calling someone an Egyptian or Mexican;
- Asking a Mexican employee to give the name of good Mexican restaurant; and/or
- Commenting about an employee based upon his/her stereotype.
Appropriate comments based upon national origin: An employee’s national origin is irrelevant. However, an employee may inquire about an employee’s cultural values, but may not respond negatively.
Inappropriate comments based upon age: A comment about an employee’s age is irrelevant in the workplace and should not be made. The following statements are considered inappropriate:
- Calling people “old”, giving a birthday card stating an employee was “over the hill”;
- Making derogatory comments such as was the television invented when you were a kid?
- Calling an old person “grandpa” or “grandma”; and/or
- Complaining an employee is an “old nag”.
Appropriate comments based upon age: No comment about age is ever appropriate.
Inappropriate comments about sex: Whether a person is a man or woman is irrelevant in the workplace and any discussion is inappropriate. The following comments are inappropriate:
- Calling a woman a “girl”, “dumb blonde”, “lady”, “a member of inferior sex”;
- Commenting an employee is crabby because she is menstruating;
- Comments about menopause;
- Calling an employee the “Spandex Queen”;
- Informing an employee he will give her $500 if he could call her “Sweet Georgia Brown”;
- Employee referred to himself as the “President of the Amateur Gynecology Club”;
- Sending an email containing a news report on Finland’s proposal to institute a sex holiday;
- Referring to a job as a man’s job;
- Commenting about sexual fantasies;
- Forwarding a parody of a play entitled “Girl’s Guide to Condoms” to a male staff member who forwarded it to a female employee;
- Commenting about a woman’s breast or body size; and/or
- Commenting about Monica Lewinsky’s dress and inquiring if a woman wore a blue dress she would do the same.
Appropriate comments about gender: An employee should not reference an employee’s gender. However, if done an employee must appropriately reference “women”, not girls, ladies, chicks, babes, etc.
Inappropriate comments based upon race: Comments about race are unacceptable. The following is a list of inappropriate comments:
- Identifying people by race or color, i.e., “Blacks”, “Hispanic”, “Chinese”;
- Commenting to an African American employee that he was “lazy like the rest of his people and that’s why they are all in prison”;
- Commenting that Chinese eat only rice;
- Commenting about an employee’s skin color, hair or dress related to an employee’s race;
- Stating that “black guys are too dumb to be insurance agents”; and/or
- Referring “y’all, “you people”.
Appropriate comments about race: Employees should not identify an employee by his/her race. If an employee’s race is mentioned, the appropriate reference is “African Americans” or “Asian Americans” or “Latinos”.
Inappropriate comments based upon sexual orientation and sexual identity: “Sexual orientation” is whether an employee is a homosexual, bisexual, or heterosexual. “Sexual identity” is defined as a transsexual or a transgendered employee. Discussing sex and/or sexual preferences is never appropriate. The following are inappropriate comments:
- Calling an employee gay, lesbian, dyke, homo;
- Asking whether an employee goes both ways; and/or
- Asking an employee about what type of sex s/he had.
Appropriate Comments about sexual orientation: Discussing an employee’s sexual preference is inappropriate and should not be discussed.
Comments based upon physical or mental challenges: An employee’s physical or mental challenges should not be addressed unless for job-related reasons. The following comments are inappropriate:
- Calling someone “retarded”, “crippled”, “handicapped”, “idiot”, “dumb”, “geek” because of mental challenges;
- Calling someone “gimpy” if s/he has physical challenges;
- Making jokes about physical or mental challenges;
- Identifying an employee by his/her condition – “blind”, “deaf person”, “mute; and/or
- Calling someone “crazy” when s/he has a bipolar condition or other condition.
Appropriate comments about physical or mental challenges: An individual should not be identified by her mental or physical condition. If it must be referenced, the person should be referenced first, then the impairment:
- Individual with visual challenges;
- Individual with physical challenges;
- Individual with low vision;
- Individual who is hard of hearing or hearing impaired; and/or
- Individual who is emotionally challenged.
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SUPERVISOR’S RESPONSIBILITY REGARDING HARASSMENT AND/OR DISCRIMINATION
Why should I as a supervisor care about discrimination? It’s not my business what other people say or do, I am not a censor. The First Amendment allows freedom of speech. It is your business. You are a censor. The First Amendment doesn’t apply in the private employer arena. As a supervisor, you are responsible for addressing and preventing harassment and inappropriate conduct amongst employees. If you do not address it, the credit union may be liable. You are required to be a censor. As a member of management, you are the credit union and whatever you say or do impacts the credit union and your employees. As a supervisor, you have many responsibilities, two of which are:
- Not to participate in any discriminatory conduct; and
- Make sure your coworkers, peers and/or members do not treat your employees or coworkers in a discriminatory fashion.
As a supervisor, you have a personal interest in preventing discrimination claims as you can be sued individually in a discrimination suit. Regardless of whether you are sued individually, if a discrimination charge is filed, you are answerable for your conduct and the conduct of others in your department. It is in your best interest to ensure employees are treated equally and are not subject to any inappropriate conduct. The fact an employee does not complain does not mean you don’t have to address the conduct. The fact you saw or heard it is reason to act.
As a supervisor, how do I prevent discrimination? Supervisors must be conscious of the way they and their coworkers speak and interact with others. Employees must speak in a way not to offend others or violate the discrimination policy. Oftentimes, when speaking, people make stereotypical comments without realizing it. Employees and supervisors may not comment, ridicule or joke with an employee because of his/her race, sex, sexual orientation, national origin, religion, military status, age, membership in the uniformed services, FMLA.
Supervisors need to be sensitive as to what is considered inappropriate or offensive. Supervisors must ensure that all employees are protected by any type of inappropriate conduct. Consequently, supervisors must do the following:
- Immediately address and/or discipline employees who tell inappropriate jokes or make inappropriate comments. Immediately report any inappropriate conduct to Human Resources;
- Monitor and prohibit employees from accessing inappropriate websites, sending jokes or inappropriate e-mails;
- Observe member and vendor contact to ensure members or vendors are not inappropriately addressing, touching or giving gifts to tellers, member service representatives or other credit union employees;
- Encourage reporting under CU’s Harassment and Discrimination Policy; and
- Ensure that when you interact with employees outside of the workplace that neither the employee nor you conduct yourself inappropriately. Just because you are outside of work does not mean that you are insulated from liability.
Reporting Inappropriate Comments and Conduct
If an employee believes s/he or others is/are being treated differently because of a protected category, s/he must immediately report the comment or conduct. A supervisor has a responsibility to inform Human Resources of any complaints of discrimination. This is the avenue for preventing similar conduct from recurring. No employee will be retaliated against or treated different because s/he reports inappropriate comments or conduct.
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An employee is responsible for not participating in harassment or discrimination. An employee may not make jokes, send inappropriate e-mails, or conduct himself or herself in a way which may offend others.
"It’s not anyone’s business what I say or do. The First Amendment allows freedom of speech."
The First Amendment doesn’t apply to private employers. Employees may not say whatever they want and may be disciplined for inappropriate comments.
How can a credit union prevent discrimination?
Employees must be conscious of the way their coworkers speak and interact with others. Employees must speak in a way not to offend others or violate the discrimination policy. Oftentimes, when speaking, people make stereotypical comments without realizing it.
Supervisors may not participate in any conduct which could be considered inappropriate. Further, supervisors are responsible for ensuring employees credit-union wide conduct themselves appropriately and not in a discriminatory fashion. Supervisors must inform employees of employee’s responsibility to do the following:
- Report inappropriate jokes or make inappropriate comments;
- Do not access inappropriate websites;
- Do not tell or send jokes or inappropriate e-mails.
A credit union should provide employee and supervisory harassment training annually and supervisors need to know what is and is not considered appropriate conduct.
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