CPA Practice Advisor

SEP 2018

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24 SEPTEMBER 2018 ■ THE LABOR LAW ADVISOR RICHARD D. ALANIZ Partner Cruickshank & Alaniz, LLP #$%@! Profanity in the Workplace The use of profanity in everyday conversation has become pervasive, especially with Gen Xers’ and millennials, but others as well. We can all point to well-known politicians and celebrities that all too often use profanity in their daily dialogue. Recently, it has become a badge of honor for the Hollywood crowd. When profanity is used outside of the workplace, as part of social interaction, as distasteful as it may be, it has no legal significance. It can be a totally different issue when used in the workplace. Often, when profanity is used in the workplace, managers and supervisors are reluctant to address it for fear that they will be seen as prudish or part of the speech police. However, employers need to carefully consider their response to profane or obscene language when used by employees. As discussed later, in some circumstances, cursing or the use of offensive language is considered protected activity under the National Labor Relations Act. And this law applies in both union and non-union workplaces. In other cases, profane language, when tolerated and pervasive in the workplace could create a hostile work environment that carries with it legal liability under anti-discrimination laws. Why You Must Address Profanity A recent federal court case in Portland, Oregon, involved an employee with strong Christian beliefs who was subjected to workplace profanity that included the use of God’s and Jesus Christ’s names in cursing. The employee had informed those that used such profanity that she found the language offensive because of her religious beliefs. The jury found the company liable for permitting a hostile work environment based upon her religion. Religion is one of the fundamental categories deemed protected under the provisions of Title VII of the Civil Rights Act. Virtually every workplace will have one, two, or perhaps even several employees who use crude, obscene or profane language. This may sometimes include supervisors. Many workplaces will also have employees who find such language deeply offensive. Balancing those competing concerns, while at the same time staying in compliance with all relevant laws can be a tricky task. Employers must actively address the issue before significant problems arise. Ignoring obscene or crude language can harm customer relations, cause the business to appear unprofessional, and even worse, put employers at risk of claims of allowing a hostile work environment, as was found in the Portland case referenced above. In one recent case, the National Labor Relations Board overturned an employee’s termination for profanity where it found the company “had a general laxity toward profanity in the workplace.” Workplace Profanity In some workplaces, profanity may be common and accepted conduct. In others, it may be clearly unacceptable. And in some organizations, it may be both. At a restaurant for example, cursing and sexual banter in the kitchen, while not appropriate, may be a regular occurrence. However, the same language would be considered unprofessional, inappropriate and unacceptable in front of customers. Obscene language that may be occasionally heard on a shop floor is almost always considered unacceptable in the front office. Another challenge with managing potentially offensive language in the workplace is its subjectivity. What one person may find shocking or profane may not be a problem for someone else. While profanity and obscenities have different degrees of offensiveness, certain words or phrases are clearly improper and cannot be tolerated in the workplace. For example, ignoring slurs about race, gender, ethnicity, disability, or sexual orientation as well as sexual innuendos, can form the basis for claims of unlawful harassment and hostile work environment. In certain circumstances, profanity can even form the basis for claims of workplace violence. According to the U.S. Department of Labor’s (DOL) “Workplace Violence Program” approximately 2 million persons are victims of non-fatal workplace violence every year. The DOL considers “verbal abuse including offensive, profane and vulgar language” to be included in the forms of violence among coworkers. Such conduct, if tolerated, would certainly be strong evidence of a hostile working environment.

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