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CONTENTS
[. .] Introduction
[X] Discrimination and Harassment, the
Differences
[X] Good and Bad Discrimination
[X] References
INTRODUCTION
Private and public employers commonly adopt anti-discrimination
and anti-harassment policies to protect their employees and
clients from abuse. These fairness policies typically start by
listing a set of actions that define harassment and possible
unjust discrimination. These actions are the first criterion.
Many fairness policies then add a second criterion that requires
the alleged victim to show that the abuser also had an inappro-
priate motivation such as race, sex, age, etc.
Another dimension in the process of protecting employees and clients against harassment and inappropriate discrimination is the different advantages offered by (a) federal or state laws and (b) institutional policies. Laws apply to everyone, regardless of an institution's policy and are enforceable through the court system. An institutional policy can exceed the coverage of existing laws, but may not be enforceable through the court system. For example, Ohio Governor Ted Strickland's Executive Order 2007-10S states that no person employed by the State of Ohio may discriminate "on the basis of sexual orientation of gender identity" in decisions related to hiring, layoff, termina- tion, etc.[1] Order 2007-10S does is not mention motivations such as race, sex, age, etc. that are already defined in current laws. Only agencies under the Governor Strickland's jurisdiction are expected to provide the protection defined in Executive Order 2007-10S.
DISCRIMINATION AND HARASSMENT, THE DIFFERENCES
Employees and clients (such as teachers and students) are rou-
tinely and fairly discriminated against because of their qualifi-
cations and performance. For employees, this means that deci-
sions regarding their wages, promotions, layoffs, etc. will be
influenced by their qualifications and performance. For stu-
dents, constructive discrimination includes: only the best
basketball players are assigned to the varsity team; only the
students who missed problems on their math homework are assigned
additional problems; etc. Of course, there are also abusive
forms of discrimination, such as those based on race, sex, age,
etc.
However, mean-spirited harassment of any employee or client is always unacceptable, regardless of the abuser's motivation. Ac- cordingly, to get relief, an alleged harassed victim need show only that he or she is the target of harassment, the first criterion. Various types of harassment of students are spelled out in detail by the Ohio Department of Education's Model Policy on "Anti-Harassment, Anti-Intimidation or Anti- Bullying".[2]
GOOD AND BAD DISCRIMINATION
In the following discussion, discrimination that is reasonable
and constructive will be called "good" discrimination. Discrimi-
nation that is unfair and abusive will be called "bad" discrimi-
nation. The policy goal is to provide guidance for sorting the
good from the bad. Typically this is done by defining bad dis-
crimination as one based on specific motivations such as race,
sex, religion, etc. To obtain relief from bad discrimination,
alleged victims must show: (a) that they have been treated
unfairly, and (b) that the abuser was motivated by race, sex,
religion, etc. That is, alleged victims must show two criteria
of proof.
An anti-discrimination policy based on bad motivations has three
shortcomings.
* Firstly, alleged victims of bad discrimination may not know why
they are the target of abuse. As a result, they have no way to
provide the second criterion of proof.
* Secondly, even if alleged victims of bad-discrimination do
suspect their abuser's motivation, and even if the suspected
motivation is on their employer's bad-motivation list, proving it
may be very difficult.
* Thirdly, the suspected motivation may not be on the employer's
bad motivations list. It may have been the victim's political
party affiliation, concern for honesty, habit of quiet hard work,
etc.
An alternative to an anti-bad-discrimination policy is to use a policy that allows only good-discrimination reasons. Former Governor Bob Taft's Executive Order 99-25T listed "merit and fitness" as good reasons for discrimination.[3] This order cited Article 15.10 of the Ohio Constitution.[4] Under a pro-good- discrimination policy, the above mentioned three shortcomings of an anti-bad-discrimination policy are eliminated.
REFERENCES
[1] Ohio Governor Ted Strickland, Executive Order 2007-10S,
Establishing Policy Against Discrimination Based on Sexual
Orientation or Gender Identity, 2007.
[2] Ohio Department of Education, Anti-Harassment, Anti-Intimida-
tion or Anti-Bulling Model Policy (Rev.03, 05/14/07), Per House
Bill 276, Ohio State Board of Education, as Adopted on July 10,
2007.
[3] Former Ohio Governor Bob Taft's Executive Order 99-25, Policy
against discrimination in State employment, 1999.
[4] Ohio Constitution Article 15.10 Civil Service, Adopted
September 3, 1912, "Appointments and promotions in the civil
service of the state,the several counties, and cities, shall be
made according to merit and fitness..."
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Up-dated: July 12, 2010