Over the last several months, I’ve been asked to do far more sexual harassment prevention trainings than typical and the issue of profanity in the workplace has popped up.
No doubt that much of this is due to the recent spate of cases of very public sexual harassment and assault cases (Thank You Matt Lauer!). This has led to the #metoo and #timesup movements becoming more than a mere hashtag.
But at a recent training, we got into a discussion about whether profanity could ever be used in the workplace. Does it create a “hostile work environment” under federal anti-discrimination law?
I’m not the only one to think about this question. In fact, the Hostile Work Environment podcast (how appropriate!) tackled this subject a few weeks back — and also delved into the subject about whether an employee’s use of profanity could be protected speech as well.
But one of the most interesting cases I’ve seen on the subject differentiated between different types of profanity (h/t Ohio Employer’s Law Blog for the original cite to this case) and came out of the 11th Circuit early this decade.
Before we go further, let me use the words of the 11th circuit to issue a warning:
We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”
(I’m still going to keep this post PG-13 but now that you’ve been warned, read on….)
The court’s decision focuses on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”
The court said that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”
And thus begins a discussion of profanity that hasn’t often been seen in the court system.
[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….
The court then focuses on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.
[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”
The court opines that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”
But what if the workplace just had a lot of profanity?
Then, the court says that might not be enough. “If the environment portrayed by [the Plaintiff at the Company] had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”
For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it. Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.
One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff. The court easily dismissed that argument. Once [the Plaintiff] entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that [the Plaintiff] had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”