When does crude language cross the line and become unlawful harassment?
A court decision from this week reminded me about this issue, which I’ve been thinking about and discussing in harassment training for a long time (but not on this blog).
Before I go on, I should warn you: This post contains offensive language, even though I will be using asterisks or initials for the really bad words.
Still with us? OK!
If your workplace cursing is limited to “hell” and “damn,” you should be fine. You can probably even get away with saying “sh**” and “a**h*le,” assuming you don’t direct those words atanyone in particular, and assuming you don’t use the words only when talking to or about employees of a certain gender, race, or other protected characteristic.
Those words may offend some of your co-workers, but they’d have a hard time getting anywhere with a claim of unlawful harassment. That’s because to be unlawful, the behavior has to be based on a legally protected characteristic. It also has to be “severe or pervasive,” and it’s likely that these innocuous cuss words, used in a non-directed, non-discriminatory way, will not be considered either.
On the other hand, what if the word does have sex-based or sexual connotations? For example, you accidentally slam your finger in your desk drawer and scream “F***!!!!!!”
George Carlin had a funny routine about the many and varied uses of the “F” word, which I won’t link, but you can Google it if you’ve never heard it.
Other examples of sexually vulgar words used in non-sexual contexts include the following:
“Ivanka Trump is a feckless c***.”
“Oh yeah? Well, Samantha Bee is a nasty bi**h.”
“Dude, why are you being such a d**k about this?”
“You’re scared? What a p**sy!”
We can all agree that these are not very nice ways to talk, and that most employers would prefer that their employees express themselves at work in a more professional manner.
But if you’re using the F word as an expletive to express the extreme pain you are suffering because you pinched your finger in a desk drawer (or you’re using the D word to describe a guy, or the C or B word to describe a woman, who’s being a total pain in the b*tt, or the P word to describe a wimp), I’d argue until my dying day that you have not even violated your company harassment policy, much less the law. Yes, all of those words have sexual meanings, but you’re not using them in that way.
That said, you do run the risk of being accused of harassment. Even though you didn’t mean the words in their sexual sense, your co-workers may have a different perception. Which could result in your being reported to Human Resources, or even named in a harassment charge or lawsuit. Plus, as I said, it’s not a very nice way to talk, especially at work.
So, ripping off another George Carlin routine that I can’t link to, here are my
SEVEN RULES ABOUT DIRTY WORDS AT WORK
Rule 1: Cuss sparingly at work. Less is more.
Rule 2: When you must cuss, try to use words that do not have any sexual meanings, like “hell” and “damn.” (I call these the “nice cuss words.”)
Rule 3: If you must take the Lord’s name in vain, be mindful of your religious co-workers, who might consider that to be a sin and a form of religious harassment toward them. True story: I once had a religious discrimination lawsuit based, in part, on the fact that the plaintiff’s boss said “G.D.” all the time. (We eventually won the lawsuit, but who needs that aggravation, not to mention the legal fees?)
Rule 4: Never cuss at a particular individual.
Rule 5: When you cuss — even if you use only “nice cuss words” — don’t direct it toward people in any particular protected group. It’s better to be an “equal opportunity cusser.”
Rule 6: Never cuss in front of a customer or client of your employer. If you do, you are likely to find yourself out of a job. A limited exception may apply when you know the customer or client well, and you limit yourself to the “nice cuss words.”
Rule 7: Apply all of the above rules to cuss words that may have double meanings based on race, national origin, disability, age, sexual orientation, or gender identity. I can’t think of any examples off the top of my head, but if there are any, don’t use them in the workplace.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
