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Prohibitions Against Discrimination Under ASHA’s Code of Ethics and Enforcement by the Board of Ethics

Table of Contents

Introduction

There’s no place for any kind of discrimination in the discipline of communication sciences and disorders (CSD) or in the professions of audiology and speech-language pathology.

A critical professional value and expectation promoted by the American Speech-Language-Hearing Association’s (ASHA) Code of Ethics (2016) (hereafter, “the Code”) is “fairness.” Furthermore, in ASHA’s Envisioned Future: 2025, the Association recognizes its significant role in opposing and condemning “systemic racism and discrimination in the professions and their impact on communication, health, and education.” To that end, ASHA’s Code prohibits racism and other forms of unlawful discrimination in the professions.

Such discrimination may arise (a) in clinical settings for our clients/patients/students and their families; (b) for our CSD students in academic programs; or (c) for our colleagues both in and outside our professions. Failure to act when witnessing discrimination in the professions may rise to an ethical violation under the Code.

The Code also requires covered individuals—audiologists, speech-language pathologists (SLPs), and speech, language, or hearing scientists who are ASHA members or who hold or who have applied for the Certificate of Clinical Competence (CCC)—to comply with local, state, and federal laws related to practice and research (Principle IV, Rule R). Such laws include federal, state, and local anti-discrimination laws in educational and employment settings. The ASHA Board of Ethics (hereafter, “BOE”) has the discretion to rely on such antidiscrimination laws in applying the Code’s antidiscrimination rules.

This document was created to provide general information and guidance to individuals considering filing discrimination claims as potential ethical violations under the Code. This document

  1. provides legal definitions of discrimination in educational and employment settings,
  2. reviews relevant Code provisions,
  3. compares discrimination remedies available under the Code and the law,
  4. presents examples in the professions that the BOE might and might not consider discrimination violations of the Code, and
  5. offers options and resources for individuals to consider.

See Appendix A for definitions of legal terms that are used to describe discrimination in workplaces and in colleges and universities.

Code Provisions Relevant to Prohibiting Discrimination

As discussed in the Issues in Ethics Statement, Cultural and Linguistic Competence, specific Code rules underscore that discrimination “in any professional arena and against any individual for any reason, whether subtle or overt, ultimately dishonors the professions and harms all those within the practice.” Accordingly, “care should not vary in quality based on” an individual’s identity. Making assumptions about individuals “could lead to misdiagnosis, improper treatment of the individual, or research bias.”

Antidiscrimination

The Code includes two provisions that specifically prohibit discrimination under two separate principles and corresponding rules. Principle I of the Code imposes on audiologists and SLPs the “responsibility to hold paramount the welfare of persons they serve professionally or who are participants in research and scholarly activities.” To that end, Principle I, Rule C prohibits discrimination “in the delivery of professional services or in the conduct of research and scholarly activities on the basis of race, ethnicity, sex, gender identity/gender expression, sexual orientation, age, religion, national origin, disability, culture, language, or dialect.”

Principle IV of the Code speaks to the ethical obligation of practitioners and researchers to “uphold the dignity of the professions, maintain collaboration and harmonious interprofessional and intraprofessional relationships, and accept the professions’ self-imposed standards.” Principle IV, Rule L prohibits discrimination in individuals’ relationships with “colleagues, assistants, students, support personnel, and members of other professions and disciplines on the basis of race, ethnicity, sex, gender identity/gender expression, sexual orientation, age, religion, national origin, disability, culture, language, dialect, or socioeconomic status.”

These antidiscrimination provisions should be read in conjunction with Principle IV, Rule R of the Code, which prohibits individuals from violating local, state, and federal laws and regulations related to practice and research. Accordingly, the BOE must consider the protected categories under federal law and also those additional individuals protected from discrimination under the state and local laws in which an ethics complaint arises. For example, if an individual asserts that an audiologist refused to hire them because of their hairstyle, and the state where the individual was denied employment prohibits discrimination based on personal appearance, then the BOE would consider that discrimination claim, even though that basis is not listed under Principle IV, Rule L.

Antiharassment

The Code specifically prohibits harassment—sexual harassment in particular—under two principles and corresponding rules:

Principle IV, Rule G: “Individuals shall not engage in any form of harassment, power abuse, or sexual harassment.”

Principle IV, Rule H: “Individuals shall not engage in sexual activities with individuals (other than a spouse or other individual with whom a prior consensual relationship exists) over whom they exercise professional authority or power, including persons receiving services, assistants, students, or research participants.”

General Code Provisions That May Apply to Discriminatory Misconduct

Under Principle IV, general rules exist that may be violated when individuals engage in discriminatory misconduct, including Rule D: “Individuals shall not engage in any form of conduct that adversely reflects on the professions or on the individual’s fitness to serve persons professionally.”

Other rules under Principle IV clarify that individuals have an ethical responsibility to act when they see unprofessional conduct—which includes discriminatory behavior and behavior that falls both within and outside our professions—either by working collaboratively to address the situation or by filing an ethics complaint.

  • Rule M: “Individuals with evidence that the Code of Ethics may have been violated have the responsibility to work collaboratively to resolve the situation where possible or to inform the Board of Ethics through its established procedures.”
  • Rule N: “Individuals shall report members of other professions who they know have violated standards of care to the appropriate professional licensing authority or board, other professional regulatory body, or professional association when such violation compromises the welfare of persons served and/or research participants.”

The following rules under Principle IV may be relevant to ethics complaints involving discrimination allegations; they prohibit retaliation and the withholding of relevant facts from the BOE.

  • Rule O: “Individuals shall not file or encourage others to file complaints that disregard or ignore facts that would disprove the allegation; the Code of Ethics shall not be used for personal reprisal, as a means of addressing personal animosity, or as a vehicle for retaliation.”
  • Rule Q: “Individuals involved in ethics complaints shall not knowingly make false statements of fact or withhold relevant facts necessary to fairly adjudicate the complaints.”

Enforcement of the Code’s Antidiscrimination Provisions

Jurisdiction

As discussed in the Issues in Ethics statement, ASHA Board of Ethics Jurisdiction, the BOE has jurisdiction over every individual who is (a) a member of ASHA, whether certified or not; (b) a nonmember of the Association holding the Certificate of Clinical Competence (CCC); or (c) an applicant for certification, or for membership and certification. Additionally, the Practices and Procedures of the Board of Ethics (2020) [I(A)(9)] states that resignation of membership or other termination and/or surrender of certification does not preclude the BOE from pursuing an alleged ethical violation to its conclusion.

What the Code Can Do for You

Local, state, and federal laws set minimal levels of acceptable (and unacceptable) conduct. The Code, however, goes a step further to preserve the “highest standards of integrity and ethical principles” for the professions. (See Code Preamble.)

  • The Code has for many years protected against unfair treatment of individuals beyond those categories protected by Title VII, including sexual orientation and gender identity. (Principle IV, Rule L)
  • The Code provides broad harassment protections for individuals receiving services, assistants, students, and research participants by prohibiting “power abuse.” (Principle IV, Rules G and H)
  • The Code focuses on individuals and therefore includes those who work for employers both large and small.
  • In a few cases, courts impose legal criminal penalties for violations that also violate the Code, such as sexual assault and child abuse. Although courts may permit criminal legal records to be expunged, Code violations are permanent.
  • The BOE provides a significantly longer time period than federal antidiscrimination laws—generally up to 10 years—in which individuals may file ethics complaints involving allegations of discrimination and harassment.

What the Code Can’t Do for You

The BOE has more limited authority to enforce the Code than do bodies enforcing Title VII. 

  • Misconduct must be connected to the professional and educational lives of audiologists, SLPs, and speech, language, and hearing scientists in order for the BOE to consider a complaint.
  • If you’ve been discriminated against, the BOE does not have authority to “win back” your job or order monetary damages, nor does the Code allow for the repayment of attorneys’ fees.
  • Even though the Code prohibits filing of an ethics complaint as a form of retaliation (Principle IV, Rule O), the Code can’t completely protect you from retaliation.   
  • Unlike courts, the BOE lacks subpoena power. [Practices and Procedures of the BOE I(C)(3)] Therefore, the BOE cannot require parties to submit materials in ethics cases, nor can it compel the appearance and/or participation of witnesses.

The BOE does not have its own independent fact finders or investigators. This fact, combined with the BOE’s lack of subpoena power, makes the BOE reliant on parties to cooperate voluntarily by submitting evidence in the ethics case process. [Practices and Procedures of the BOE I(C)(3)]

Limitations to Enforcing Antidiscrimination Allegations Under the Code

Despite the BOE’s lack of subpoena and investigatory powers, it still must have sufficient evidence to determine whether violations of the Code have occurred. [Practices and Procedures of the BOE I(A)(3) and I(C)(1)] Accordingly, the BOE generally declines to hear any complaint alleging Code violations when sufficient evidence is not provided.

The BOE strongly encourages individuals to pursue other available remedies, especially in discrimination cases, before deciding to file an ethics complaint. Remedies are available from numerous decision-making bodies, including but not limited to federal agencies, academic committees, institutional review boards, state and local human rights commissions, courts, and other appropriate entities. Individuals are reminded to seek resolution in a timely manner to ensure that their case is eligible for consideration by such bodies.

Absent extraordinary circumstances, the BOE holds potentially actionable ethics complaints alleging discrimination in abeyance until any pending legal and/or administrative proceedings (and related appeals) are completed. Then, if the BOE determines that sufficient evidence exists to proceed with the case, the BOE relies on the factual findings, investigations, and legal determinations from other completed proceeding(s) in its deliberations.

On occasion, individuals file ethics complaints alleging discrimination under the Code when they have signed a settlement agreement or nondisclosure agreement with the opposing parties that contains confidentiality provisions. In such situations, the BOE is usually unable to proceed with the cases because insufficient evidence is available for the BOE to determine whether the Code has been violated.

Although the BOE may choose to follow the ruling of another decision-making body, such as a court or institutional hearing board, it is not bound to do so. The BOE enforces the Code, not the law, thereby engaging in ethical (not legal) analysis. At the same time, the BOE retains the authority to dismiss ethics complaints if it determines that another decision-making body has responded with an “adequate correction” in a case that sufficiently addresses and resolves the existing ethical concerns of the BOE. [Practices and Procedures of the BOE 1(G)(3)]

If sufficient evidence exists, the BOE will determine whether—based on a preponderance of the evidence—the alleged unethical conduct violated the Code and is grounds for discipline and sanction. Preponderance of the evidence is a legal standard of proof that is defined as there being “[a] greater than 50% chance that the alleged Code violation is true.” (Code Terminology)

The Equal Employment Opportunity Commission (EEOC), the mission of which is to prevent and remedy unlawful employment discrimination, looks to “the whole record: the circumstances...and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.” So, too, does the BOE consider each case individually, based on specific facts and circumstances.

Whether the BOE imposes discipline often depends on a number of factors, including but not limited to

  • the severity of the violation,
  • a prior record (or lack thereof) of discipline,
  • years of practice/research experience,
  • participation/cooperation with the BOE,
  • steps taken to repair damage and/or ensure that the situation doesn’t arise again,
  • whether the individual self-reported (if applicable),
  • whether the misconduct violated laws or regulations, and
  • whether the individual takes responsibility for the conduct.

Conclusion

The Code provides the ethical grounding “to ensure the welfare of the consumer and to protect the reputation and integrity of the professions”—including protecting from discrimination our clients/patients/students and their families, the CSD higher education students we teach and mentor in academic programs, and those colleagues within and outside of our professions (Code Preamble). It is important to remember that not all misconduct, even though abhorrent, may rise to unethical (or illegal) discrimination.

Individuals may consider the options provided in this resource document when pursuing discrimination claims under the ethics code against ASHA members and/or ASHA certified individuals in employment and educational settings; however, the best alternative may be to first pursue discrimination claims in other venues, where resolutions may be timelier and remedies more robust. At the conclusion of those other proceedings, individuals may then have stronger evidence for filing discrimination claims under the Code for the BOE to consider.

Appendix A

Legal Definitions of Different Types of Discrimination

The BOE may interpret and enforce the Code based on various federal laws prohibiting discrimination in education and work settings. 

Federal laws are interpreted by courts as well as by the federal agencies that enforce those laws. For federal antidiscrimination laws, the primary agencies are the EEOC, the U.S. Department of Education (DOE), and the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS). 

Key laws that protect individuals from discrimination are discussed in the subsections below. In addition, all of these federal antidiscrimination laws protect from retaliation individuals who complain about discrimination, file a charge of discrimination, or participate in a discrimination investigation or lawsuit.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act (“Title VII”) prohibits employment discrimination, defined as “harmful verbal or physical conduct that manifests bias or prejudice towards others,” based on protected characteristics that results in unfair treatment and denial of opportunities. Title VII covers the following protected classes: race, color, religion, sex, and national origin. In 2020, the U.S. Supreme Court ruled that Title VII’s prohibition against employment discrimination “because of sex” also protects individuals based on sexual orientation and gender identity. 

Harassment and sexual harassment are forms of employment discrimination under Title VII. The EEOC explains, “harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).” The EEOC also describes workplace harassment as involving “unwelcome and offensive conduct that is based on race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, age (age 40 or older), or genetic information.” Examples of harassment provided by the EEOC include “offensive or derogatory jokes, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person's religion or religious garments, or offensive graffiti, cartoons, or pictures.” The EEOC states that one instance of harassment is generally not sufficient to establish a legal action—unless the conduct is severe, such as a physical assault, or pervasive. The EEOC views courts as requiring a pattern of harassing behavior before finding liability. 

Sexual harassment may include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” The EEOC explains: “Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Title VII’s prohibition against employment discrimination includes bias against individuals based on national origin. National origin includes the subcategories of ethnicity, dialect, and accent. The EEOC defines national origin discrimination as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” ASHA states, “All individuals speak with an accent and/or dialect; thus, the nonacceptance of individuals into higher education programs or into the professions solely on the basis of the presence of an accent or dialect is discriminatory. Members of ASHA must not discriminate against persons who speak with an accent and/or dialect in educational programs, employment, or service delivery, and should encourage an understanding of linguistic differences among consumers and the general population” (see ASHA’s Position Statement, Students and Professionals Who Speak English With Accents and Nonstandard Dialects: Issues and Recommendations).

Title VII also prohibits employment discrimination based on religion. The EEOC states that such discrimination “includes refusing to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship (more than a minimal burden on operation of the business).”

Title VI of the Civil Rights Act

Title VI of the Civil Rights Act (“Title VI”) protects individuals from discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance, which may include colleges, universities, hospitals, nursing homes, and rehabilitation centers. 

Title IX of the Education Amendments

Title IX of the Education Amendments (“Title IX”) prohibits sex discrimination in educational programs and activities that receive federal funding: “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives . . . Federal financial assistance . . . .” 

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) protects individuals from age discrimination; specifically, it prohibits employers from discriminating against persons 40 or older because of age. 

The Americans With Disabilities Act

Disability discrimination is also prohibited under federal law. The Americans With Disabilities Act (ADA) prohibits discrimination against, and provides protection for, “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” The discrimination could involve any aspect of employment, including applications, interviews, testing, hiring, job (re)assignments, evaluations, compensation, leave, benefits, discipline, training, promotions, medical exams, layoffs, and firing (regardless of funding). The law requires that employers reasonably accommodate known physical or mental limitations of an otherwise “qualified individual” with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business. Section 504 of the Rehabilitation Act of 1973 also prohibits discrimination based on disability, requiring reasonable accommodations in programs and activities that receive federal funding—including many colleges and universities.

The Immigration Reform and Control Act

The Immigration Reform and Control Act (IRCA) [PDF] bans employers from discriminating in employment against applicants and employees on the basis of their citizenship or national origin.

Appendix B

Some Examples of Potentially Discriminatory (and Nondiscriminatory) Misconduct

The following examples are hypothetical scenarios. Because the BOE examines each ethics case on its specific facts and circumstances, these examples are provided only for the purpose of illustration and should not be relied upon as binding or assumed to be precedent in future cases. Rather, the examples below are provided to explore the various ways in which discrimination claims might arise under the Code and how the BOE could analyze them. They were inspired by examples provided in regulations (e.g., HHS Title IX regulations), workplace advocacy websites (e.g., Workplace Fairness), and federal agency websites (e.g., EEOC).

Hypothetical Scenario 1: From an SLP Who Identifies as Black

I’m a well-respected SLP at my local school. After many years, I’m finally at a school where I can walk from my home to work. The school district’s special education director recently announced the need to “mix things up.” The proposal is for me to move from my current school to one on the other side of the county: It is located in a low-income community with a large Black population. When I ask the director the reason for relocating me, the director says I’d be “more comfortable” working with the student population at this school than would many other SLPs. By moving schools, I will have a higher caseload, more limited resources, and at least a 40-minute commute to and from work. I think that the job transfer is based on assumptions, perhaps unconscious ones, holding that a Black SLP would be more comfortable working in a largely Black school than would a White SLP. What should I do? 

Analysis

Assuming the special education director is an ASHA member or an individual certified by ASHA, this proposed transfer would likely raise concerns under the Code’s antidiscrimination provision outlined in Principle IV, Rule L. The issue would be whether the school district’s transfer decision was based on the biased assumption that because you’re Black, you’d be more “comfortable” teaching Black students. The BOE would need to see evidence about what, if any, legitimate, nondiscriminatory reason the director provides for the school transfer. For example, did the director initiate the transfer because the new school needs your skill set? Seeks more experienced SLPs? Requires an emergency and/or temporary/time-limited replacement? Absent such persuasive evidence before the BOE, the director reassigning you based on your race might very well violate the Code’s prohibition against race discrimination. 

However, as a practical matter, you probably want to request that your employer stop your transfer immediately—and the BOE doesn’t have the authority to order the school system to maintain the status quo pending a BOE case. So, you may want to consult with your union (if you have one), speak to your supervisor’s supervisor, or review the school district handbook and/or collective bargaining agreement to determine an appropriate procedure that you can undertake in a timely way to challenge the reassignment. Another issue is providing “persuasive evidence” in support of your ethics complaint. After the transfer matter has been resolved internally, you may want to consider filing an ethics complaint with the BOE because you may have additional evidence from your internal administrative proceedings to submit in support of your ethics complaint.

Hypothetical Scenario 2: From an Audiologist Who Identifies as Gay

I have just moved to a rural community to accept a position as an audiologist at a clinic. My husband recently picked me up from work, so I introduced him to my co-workers. Apparently, some of my new colleagues don’t feel comfortable with my being out and married. Since then, two co-workers have been teasing me incessantly, calling me “princess” and the “little woman,” asking what color dress I wore for our wedding, and other such juvenile remarks. I’ve asked them to stop, but that just seems to encourage them. I just started this position, and I don’t want to complain to the clinic owner (who is my supervisor) after I’ve just joined the clinic: I don’t want to be labeled a troublemaker. Because being ASHA-certified is part of the job requirements here, I know that my co-workers are required to follow the Code. How do I make my co-workers stop?  

Analysis 

The Code provisions governing sexual discrimination, specifically sexual harassment and sexual orientation discrimination, appear to be triggered by your co-workers’ inappropriate verbal conduct. The issue would involve the BOE examining carefully the verbal conduct of your “teasing” co-workers—specifically the ongoing name-calling—to determine whether a hostile work environment has been created for you and, perhaps, other co-workers. Remember that under Principle IV, Rule M of the Code, you can file an ethics complaint—asserting that this harassment has targeted not just you but also your other colleagues—“with evidence that the Code of Ethics may have been violated.”   

The BOE can never ensure the outcome of an ethics case before hearing it. In an attempt to stop (what appears to be) the harassing conduct of your co-workers, you may want to first consider options that can more immediately and directly address the situation. While your concern is understandable about talking to the owner, the owner is also likely to take your complaint quite seriously due to the owner’s potential liability in any legal action. Or, consider an option for reporting the alleged misconduct anonymously, if available. As an alternative, you might ask a colleague—someone who has seen the behavior and has been offended by it but is not necessarily its target—to report the alleged misconduct. 

You might also check whether your municipality and/or state prohibits sexual orientation discrimination in the workplace and, if so, file a complaint. You may also want to consult a local lawyer who is familiar with employment and state law to help you explore your rights and options. These avenues all have the potential to provide a more timely response to your current workplace situation. And should you decide to proceed with an ethics complaint after resolution of the matter, you may have additional evidence to submit to the BOE to consider your ethics allegation.    

Hypothetical Scenario 3: From a CSD Professor Who Identifies as White

While interviewing candidates for a university teaching position in the CSD department, a senior White male professor on the search committee is confusing the names of Black interviewees with the one (and only) Black tenured female professor on the search committee. (I also serve on the search committee, but I’m a White junior professor, so I don’t feel comfortable taking action.) The female professor looks nothing like the Black candidates. What can be done to stop this senior White male professor from committing illegal race discrimination?      

Analysis

Violations of the Code constitute ethical violations, not necessarily illegal actions—even though sometimes ethical violations are grounded in the same facts as illegal actions, and sometimes violating the law constitutes ethical violations. The BOE will need to determine whether the conduct exhibited by the senior White male professor on the search committee is a series of mistakes or a true act of microaggression—and, if the latter, whether that conduct is sufficiently “serious and pervasive” to constitute race and/or sex discrimination.

You probably want to discuss the matter with the female professor on the search committee, who is the target of the alleged misconduct. Perhaps the female professor, male professor, and department chair might meet informally to resolve the matter. As an alternative, you might review the faculty handbook to determine whether campus procedures exist to challenge the male professor’s conduct on the search committee and, if the answer is yes, who can file a complaint.

Hypothetical Scenario 4: From an SLP Who Identifies as Latina

Jane is currently seeking to fill some SLP openings in her clinic, which serves a predominantly low-income White neighborhood. A number of candidates applying for the position are highly qualified individuals from under-represented racial/ethnic backgrounds. Jane knows that her clients and their families don’t respond well to clinicians who “don’t look like them,” so Jane decides to hire a White individual. Jane believes that her hiring practice protects the candidates of color from unpleasant client experiences and spares her clients and their families discomfort—all while ensuring that her clinic stays in business. A former Latina student of yours, who applied for a position in Jane’s clinic but was rejected, finds out about Jane’s “policy” and contacts you, her mentor, about whether she should file an ethics complaint against Jane for discrimination. What advice do you offer?    

Analysis 

The issue is whether Jane’s specific practice violates the Code’s prohibition against discriminating based on race, ethnicity, national origin, and/or citizenship. In order to file an ethics complaint, you would need evidence to establish Jane’s informal policy. The BOE would also need to understand from Jane what, if any, legitimate, nondiscriminatory reason exists for her hiring practices. Generally, Jane’s clients and their families not liking—or feeling uncomfortable with—service providers of color would not justify rejecting qualified non-white SLP applicants.

Your former student, however, might want a more immediate resolution than filing an ethics complaint. She could check whether local and/or state law exists prohibiting discrimination based on national origin, race, and/or citizenship. There are also federal antidiscrimination laws that prohibit such discrimination (e.g., Title VII, ICRA). Your former student might want to consult a local lawyer familiar with employment and state law to explore her legal options. If the matter should settle or be heard by an antidiscrimination decision-making body, your student will not only have a timely resolution to her immediate hiring issue but may also, by then, have accumulated additional evidence to submit in support of her ethics complaint. 

Hypothetical Scenario 5: From a SLP Who Uses a Wheelchair

I’m up for promotion at the hospital clinic where I’ve worked for 6 years, and I’ve always received stellar job evaluations. During my interview, the division director asks me what is wrong with me that I use a wheelchair, if I have a degenerative disease, and if I’m able to lift 20 pounds. It’s clear to me that the director doesn’t think I can do the job because I’m an individual with a disability. Has my division director violated the Code by asking me these questions?

Analysis

The first issue to determine is whether the BOE has jurisdiction over the hospital division director: Are they an ASHA member or a certified individual of ASHA? If yes, then the second issue to consider is whether you have documentation to support your allegations of disability discrimination. It’s early in the process, only the two of you were in the interview, and you don’t yet know if this is the only instance of discriminatory behavior on the part of the division director.

The immediate hurdle is to ensure that you remain in the pool of qualified candidates for the promotion and that you not allow the interviewer’s unfair treatment of you to stall your career move. You may want to report the incident to your human resources department, your current supervisor, or the hospital ombudsperson.

Assuming that the BOE has jurisdiction over the division director, you may want to file an ethics complaint against them. At issue would be whether the interview questions posed to you violate the antidisability discrimination provision of the Code. The first two interview questions that she asked—about your wheelchair use and the nature of your health condition—seem to constitute such unprofessional discrimination. Whether the question about lifting 20 pounds would also be discriminatory depends on the written job description for, and job requirements of, the position for which you are being considered: Certain questions can be asked about each candidates’ responsibility to perform essential or required functions, with or without a reasonable accommodation. Any requests for a demonstration of ability would be appropriate only if it is required of all candidates.

Even if the division director isn’t under the jurisdiction of the BOE because they are a doctor, nurse, or physical or occupational therapist, you—as an ASHA member and certified individual—may have the ethical obligation to report their unprofessional conduct. Principle IV, Rule N provides, “Individuals shall report members of other professions who they know have violated standards of care to the appropriate professional licensing authority or board, other professional regulatory body, or professional association when such violation compromises the welfare of persons served and/or research participants.” You may want to also consider filing an ADA complaint with the U.S. Department of Justice.

Hypothetical Scenario 6: From a CSD Graduate Student Who Identifies as Female

I’m a student working at an on-campus speech and hearing clinic for the community. I notice that our supervisor assigns male students the challenging cases, whereas I and other women student clinicians are assigned all “run-of-the-mill” cases. Then, our supervisor assigns us lower clinic grades because we haven’t taken on difficult cases! I spoke to other clinic externs, and they, too, have noticed the unfair assignments. This supervisor is clearly sexist, and I want him fired.

Analysis

The most direct—and perhaps most effective—route in dealing with this situation may be speaking with the clinic director, CSD department chair and/or program director, because they are familiar with the assignment of clinic cases, the clinic curriculum, and clinic grading criteria.  If, for some reason, no listed individual in the CSD department is responsive, you could consider explore options at a higher level within your college or university, including contacting the individual responsible for processing grade challenges and/or your institution’s Title IX coordinator. By using campus alternatives at the departmental or campus level, you may have evidence to file with your ethics complaint to allege the professional misconduct of your clinic supervisor. You may also be able to get a timely resolution to the issue you’ve raised.

For you to file an ASHA ethics complaint, you must first determine whether the BOE has jurisdiction over your supervisor: Are they an ASHA member or certified by ASHA? Furthermore, the issue under the Code will be whether your clinic supervisor’s pattern and practice of case assignments constitute sex discrimination—not whether your supervisor is sexist. ASHA’s BOE doesn’t have authority to fire an ASHA member or certified individual—that is only within the purview of the clinic and/or educational institution that employs him.

Hypothetical Scenario 7: From a CSD Graduate Student Who Identifies as White

My professor likes to hang out with us students at the on-campus coffee bar. The professor thinks it’s “funny” to use the “n-word” in conversation and to tell jokes insulting people who are Black, Latinx, Asian, and of other racial/ethnic backgrounds. Even though I’m White, the comments make me very uncomfortable. I’ve spoken to my professor to stop the joking, but their response has been, “Get a sense of humor.” I followed the procedure in the student handbook by reporting the professor’s conduct to the CSD department chair, but the chair told me that it wasn’t my place to complain because none of the comments were about me. Although I can stop going to these social events, I don’t want to lose “face time” with the professor because they are supervising my independent study. Is there anything I can do?

Analysis

Under the Code, the issue would be whether the professor’s conduct constitutes racial harassment/discrimination. Although you, as a student, are not formally under the jurisdiction of the BOE (unless you’ve already applied for ASHA certification), many students are required to uphold the Code as an institutional commitment because colleges and universities adopt the Code in their student handbooks. However, the professor is bound by the Code if they are an ASHA member and/or an ASHA-certified individual.

Kudos to you for seeing unethical behavior and acting: “If you see something, say something.” Your department chair is wrong, and Principle IV, Rule M makes clear that you don’t have to be the target of professional misconduct in order to file an ethics complaint requesting a stop to such misbehavior. The evidence to support such an ethics complaint should include examples of the professor’s inappropriate remarks, how often (once? multiple times?) the professor has used the offending “n” word, whether the professor has supervisory authority over you, and whether other individuals have overheard the professor’s verbal misconduct.

You may want to explore on-campus options first so you can get the situation resolved as soon as possible (and before grades are issued), and then file an ethics complaint to address the professor’s alleged professional misconduct later.

Hypothetical Scenario 8: From a CSD Graduate Student Who Identifies as Female

I accepted my college advisor’s invitation to go out for drinks to talk about my current placement (My advisor—who is also my clinical supervisor—teaches the department’s introductory course and I’m his teaching assistant.)  Instead, he spent the evening discussing his relationship frustrations, asking about my relationship status, talking about what he looks for in a sexual partner, and so on. My advisor ended the evening suggesting that we sleep together. He said that I shouldn’t feel pressured to do it if I didn’t want to—I didn’t—and that he would still write me a good letter of recommendation. But now I’m worried that he might be able to take away my good clinic cases and write me a weak letter of recommendation because I didn’t sleep with him. Also, can he take away my job as teaching assistant (TA)? What can I do?

Analysis

The issue under the Code is whether your advisor’s inappropriate and unwelcome proposition constitutes sex discrimination, sexual harassment, and/or power abuse. That the advisor said “no pressure” or “the decision is up to you” is irrelevant, given that you are feeling pressured. Did his proposition create a quid pro quo situation—if you agreed to sleep with him, are you assured of receiving a strong letter of recommendation? Conversely, because you said no, will you receive a weaker recommendation? 

Resolution of this situation would seem to require immediate action. You may want to discuss the incident with the clinic director, program director, and/or department chair to explore the steps your institution might take right away, such as (a) providing you with a different advisor, (b) changing your advisor’s clinic hours so they no longer overlap with your schedule, (c) assigning a different professor to complete the department’s introductory course so you may continue serving as a TA, and/or (d) ensuring that your official letter of recommendation be written by another professor, the clinic director or the department chair—not by your current advisor.

You also could contact your Title IX administrator. These immediate steps may help you navigate the rest of the semester and will provide additional evidence if you decide to file an ethics complaint against your professor/advisor.

Appendix C

ASHA Resources

Inquiries on this topic or others relating to ASHA’s Code may be submitted by email to ethics@asha.org or by mail to the American Speech‐Language‐Hearing Association, attn: ASHA Ethics, 2200 Research Boulevard, #309, Rockville, MD 20850‐3289.

External Resources

ASHA Corporate Partners