Can you swear in the workplace and get away with it?

Swearing at work is not always something the employer can take action against.

I bet it is a sure thing that all of us have heard some vulgar words at work. I certainly have. I worked in a manufacturing plant in Illinois and with some employees every other word was “mother-f**king” this and “mother-f**king” that. The question is can you clamp down on vulgarity and avoid claims of sexual harassment?

Union activity is protected

Attorney Irene Zoupaniotis, writing in Bad Language: A Good Reason to Fire People? reminds us that some employees are protected from action taken against them for their vulgarity. If they are engaged in activities protected by the NLRA, such as picketing and union formation, they are allowed to be coarse in their language. I wrote about such a situation in NLRB rules calling your boss a “NASTY MOTHERF**KER” is protected! Zoupaniotis says “If the employee’s comment is contemporaneous with the employees raising work-place concerns or complaints with management, then the speech is more likely to be protected.” That is if the employee is under the protection of Section 7 and Section 8 of the NLRA. Not all employees are however. Managers, supervisors and HR professionals are not protected by the NLRA and they can be fired for their lack of decorum.
Zoupaniotis also says it is a good practice to have the following:

  • A clearly defined written policy prohibiting the use of obscene or vulgar language demonstrates the company prohibits this type of misconduct and supports discipline.
  • Disciplinary action for an employee’s violation of its language policy will be viewed more favorably if the company enforces its policy consistently.
  • Even with a defined language policy, if the company has a history of tolerating the use of profanity by its employees without discipline, then the statement is more likely to be protected.

Sexual harassment

Most reasonable people would think that vulgarity in the workplace could be perceived as hostile environment sexual harassment. After all, hostile environment is in the “eye of the beholder” and most people do find vulgarity offensive. However, in an article by attorney Michael P. Zweig, one court was quoted as saying “Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination” in the workplace. According to Zweig the court concluded “he Reeves court stated that sexual language and discussions that are truly indiscriminate do not establish sexual harassment and that the context of the offending words or conduct is essential to the analysis.” General swearing, if not directed at any person in particular, and not particularly associated with a particular gender is not grounds to make a claim of sexual harassment. The court however noted “...that such gender-specific words and conduct could lead to liability for sexual harassment, even if the words were not directed specifically” at anyone. For example, another case Zweig discusses involved a television show that dealt often with sexual subjects. An assistant, who was fired, claimed that she was harassed by such topics, but her case was not heard. Partly because she was told prior to hiring that she would be exposed to language and jokes in the creative process.
Zweig concludes:
The lesson for employers is that, while not all vulgar conduct or profane language will necessarily result in liability, key determinants are:

  1. the context in which the vulgar conduct occurs;
  2. the use of gender-specific vulgarity or profanity especially offensive to one gender; and
  3. the employer’s response (or lack thereof) to complaints from the employee concerning the vulgar and offensive conduct.

The lessons

Vulgarity is generally not a good workplace language option, though Gordon Ramsey has been successful with it. So the more you can control it the better off you are. However, people do let fly with vulgarity, especially in stressful situations. Generally those are not going to get an employer in trouble. However, vulgarity that is directed toward someone, or toward on class of employee, will generally be found offensive and illegal. Have a policy, set your standards but be aware of situations like the NLRA.

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