Discrimination and Harassment
In Defining Our Terms, we introduce the basic concepts of discrimination and harassment. We intentionally use a framework that is broader than minimum legal requirements in order to stimulate dialogue about safety, respect, and equity beyond what is required by law. We then discuss the application of these broad concepts to your organization, noting various Considerations, including legal requirements, organizational values, and capacity. At the end of this section, you will begin Drafting policy language to prohibit discrimination and harassment in your organization. Because laws differ by jurisdiction, you’ll need to make sure that your policy is reviewed for legal compliance.
Defining Our Terms
Discrimination refers to unfair or unequal treatment of an individual or group based upon their actual or perceived identity or other characteristic. It also applies to unequal treatment based on the actual or perceived identity or other characteristic of a person or group with whom the individual associates or is related. In the workplace, discrimination refers to employment policies, actions, or decisions (e.g., hiring, pay, or promotion), made on the basis of perceived or actual identity rather than on fair processes, leading to inequitable access to opportunities.
In addition to these “direct” forms of discrimination, workplace discrimination and bias can arise more subtly, such as when leaders provide unequal access or opportunities or provide support to some employees while withholding it from others because of favoritism. Both direct and subtle discrimination can occur outside of the workplace as well, such as when an organizational kibud or honor, access to a role, or other opportunities are determined on the basis of perceived or actual characteristics related to one’s identity. While these might not violate the law, they are likely counter to your organization’s values and can have significant, adverse impacts on all members of the community.
Harassment is defined by the Equal Employment Opportunity Commission as a type of discrimination that subjects someone to unwelcome, offensive behavior because of their identity, or makes tolerating such behavior a condition of employment. Examples of such behavior include, but are not limited to, speaking to or about a coworker using slurs or negative stereotypes or sharing insulting text/images based on someone’s identity. Harassment creates an intimidating, hostile, and/or offensive environment, and can interfere with job performance and advancement, or participation in an organization’s programs and services. In the workplace, harassment is:
- offensive, and
- has a deleterious effect on the terms or conditions of employment.
All states, with the exception of New York, additionally require that the behavior be severe or pervasive, as well other requirements that vary state by state.
Beyond the workplace, harassment can occur in everyday organizational and communal life, such as when a younger committee member’s ideas are ignored or denigrated due to the individual’s age, or when individuals from non-traditional Jewish backgrounds are not considered for synagogue honors because of their identities.
Sexual harassment is a specific form of harassment that can include unwelcome offensive sexual or gender-based behavior such as flirting, teasing, sexual advances, sexual language, gender-based hostility, and demeaning comments.
There are two forms of sexual harassment, the first, “hostile environment harassment”, like other forms of harassment creates an intimidating, hostile, and/or offensive environment that affects the terms and condictions of employment and can interfere with job performance and advancement, or participation in an organization’s programs and services. The second form, “quid pro quo harassment”, applies only to sexual harassment and involves requiring that someone tolerate sexual behavior or acquiesce to unwelcome requests for sexual favors as a term of employment.
People of any sex, gender identity or expression can sexually harass others or be the target of sexual harassment. Sexual harassment can occur in all aspects of communal and Jewish life and might include instances such a synagogue attendee who kisses all of the young ladies at kiddush or fitness center members who prevent women from accessing certain gym equipment, making disparaging comments about their abilities.
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Discrimination and harassment can occur in many contexts in organizational and communal life; whenever they occur, they undermine safety, respect, and equity. In employment, housing, or educational contexts, they may also be illegal. Federal law prohibits discrimination and harassment on the basis of certain categories of identity called protected classes.
Federal law protects the following classes:
- Religious belief or creed 1
- National origin
- Age over 40
- Sex, including pregnancy, gender identity and sexual orientation
- Disability status
- Veteran status
- Genetic information
Many states, cities, and counties include additional protected classes.
Harassment or discrimination against these classes may manifest in particular ways in Jewish organizations:
- Research shows that most Jews of Color have been asked intrusive questions about their faith or observance in Jewish settings.2 These questions can lead to a hostile environment and a sense of exclusion.
- Similarly, Jews from a range of denominational and geographical backgrounds, including Sephardi and Mizrahi Jews; Jews by Choice, Jews with a spouse who celebrates another religious tradition and their children who may or may not identify as Jews, and those with varied cultural or ritual practices may be subject to discriminatory treatment within Jewish organizations.
- Age discrimination and harassment can take a variety of forms, such as suggesting someone is “too old” for board service, treating older people or their contributions as less valuable, assuming technological illiteracy for older adults, or stating a preference for “young, energetic employees.”
- Making comments about a clergy member or employee’s attractiveness or clothing, engaging in unwanted touching of clergy or other leaders during public events such as services, criticizing an organizational leader for failing to conform to gender stereotypes, and commenting on or asking about a person’s romantic life, childbearing capability, or future family planning are all examples of possible discrimination or harassment based on sex and gender identity. 3
Discrimination and harassment take many forms and, most importantly, are dependent on the impact of the behavior. Sensitizing your Committee members to issues of discrimination and harassment, especially as they manifest in Jewish organizations, can help you write a more comprehensive Policy that protects the organization and its members from discriminatory or harassing behavior.
1 To the extent that behavior based on religious beliefs creates undue hardship for the employer or results in discrimination or harassment of others, employers must ensure a nondiscriminatory and harassment free environment for all employees.
2 Beyond the Count: Perspectives and Lived Experiences of Jews of Color. Commissioned by the Jews of Color Initiative. https://jewsofcolorinitiative.org/wp-content/uploads/2021/08/BEYONDTHECOUNT.FINAL_.8.12.21.pdf
3 For more information about how discrimination on the basis of sex, sexual harassment, and sexual assault manifest in Jewish organizations, see We Need to Talk: A Review of Public Discourse and Survivor Experiences of Safety, Respect, and Equity in Jewish Workplaces and Communal Spaces. A research report from Safety Respect Equity (SRE) Coalition. https://srenetwork.org/wp-content/uploads/2020/10/SRE_ResearchReport_093019.pdf
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Minimum legal requirements vary by state and may be determined by the size and type of your organization. Legal counsel will help you determine the minimum requirements for your organization.
Size of organization and state laws
Federal anti-discrimination law applies to employers with 20 or more employees regardless of your state. State laws, however, often extend this protection to smaller organizations and may include additional protected classes. For example, New York requires protections for employers with four or more employees and includes medical marijuana use among its protected classes. Look up your state’s requirements here. Cities and counties may also add protected classes, so it is critical to consult with legal counsel to determine what laws apply to your organization.
Definition of sexual harassment
While sexual harassment is only one form of harassment — and harassment on the basis of any of the federally protected classes is equally prohibited by law — many states require employers to explicitly define sexual harassment as a form of prohibited harassment. Even if your state does not require this, enforcement agencies expect organizations to have specific language regarding sexual harassment in their policies.
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Everyone in your organization should be welcomed, included, and treated with dignity. For your policy, in addition to the protected classes that must be included in your policy under federal, state, or local law, think broadly about all individuals who should be protected, consistent with the makeup of your organization and your core values. Below is a non-exhaustive list of classes that are not protected by federal law, but which you may wish to consider. 4
- Relationship status, for example ensuring that rabbinic candidates are considered regardless of partnership status;
- Parental or caregiver status, for example not disproportionately assigning evening/weekend commitments to employees without children;
- Physical appearance, body type, and size, for example, providing robes of all sizes in each mikvah room rather than a sign requiring the attendee to ask for a larger size;
- Personal appearance, for example religious head coverings; traditional dress; hairstyles, including locs and braids; piercings; and body art (e.g., henna or tattoos);
- Sexual and reproductive health decisions, for example not considering an employee’s potential plans for childbearing in work assignment decisions;
- Status as a victim of domestic violence, stalking, sex offenses, or protection order
- Salary history, for example ensuring employees are not offered/paid less because of what they made in a previous job;
- Socioeconomic status, residence type and location, and source of income
- Age under 40
- Gender expression 5
Before considering which categories to include, identify your organization’s core values by reviewing Identify Your Organizational Values in Foundational Elements. We have included an example below that illustrates how a discussion of values can help your organization decide which additional classes to include.
Your organization houses the local Holocaust Remembrance Center. In Foundational Elements, your organization identified fostering intergenerational relationships as a core value, necessary for the transmission of history from one generation to the next. In considering which additional classes to protect, if your state does not already require you to do so, this value guides your committee to include “caregiver status” and “all ages” (not just those over 40 as required by federal law) in your policy. Your commitment to creating a workplace with diverse ages means accommodating employees at different life stages with different responsibilities (e.g., caring for young children and elderly parents or partners).
4 While not protected under federal law, some of these examples may represent protected status under your state or local laws.
5 While gender expression is protected under the federally protected class of “sex,” unlike, “gender identity” and “sexual orientation”, it is not explicitly named. Including this term in your policy helps to educate and ensure that the full range of protections is afforded to LGBTQ members of your community.
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Now that you have a sense of your organization’s priorities and legal obligations around discrimination and harassment, the next step is to draft language to prohibit them in your policy.
Below, we include sample language for your reference, including the following key components:
- a clear definition with examples
- an explanation that protection from discrimination and harassment extends not just to the target of the harassment, but to third parties as well
- the consequences for discrimination and harassment