What constitutes harassment?

Discriminatory harassment is not protected by the First Amendment. As explained by the University of Wisconsin Board of Regents policy document on Discrimination, Harassment, and Retaliation, discriminatory harassment is “unwelcome verbal, written, graphic or physical conduct that: is directed at an individual or group of individuals on the basis of the individual or group of individuals’ actual or perceived protected status … and is sufficiently severe or pervasive so as to interfere with an individual’s employment, education or academic environment or participation in institution programs or activities and creates a working, learning or living environment that a reasonable person would find intimidating, offensive or hostile.” This includes harassment “on the basis of race, color, creed, religion, age, sex, sexual orientation, gender identity or expression, national origin, ancestry, disability, pregnancy, marital or parental status or any other category protected by law, including physical condition or developmental disability.”

Discriminatory harassment, like incitement, is a narrowly drawn category of unprotected speech. It typically requires repeated activity, as one incident involving speech without conduct is unlikely to constitute discriminatory harassment. As explained by the United States Department of Education, discriminatory harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

Discriminatory harassment is defined in UWM policy as:

  • Any conduct (verbal, written, physical, etc.) that is directed toward or against a person because of the person’s protected status (e.g., race, gender identity or expression, disability, religion, etc.), and
  • unreasonably interferes with someone’s work, education or participation in programs at UWM, or
  • creates a working or learning environment that a reasonable person would find threatening or intimidating.

UWM prohibits sex-based discrimination and will respond to all reports of sexual misconduct as sexual harassment or sexual violence (including assault, dating or domestic violence, stalking and sexual exploitation) with care and support.