When is bad harassment prevention training worse than no training at all? When it comes with a wagging finger shaming employees whose only sin is being a little rough around the edges. When it emboldens opportunistic employees to seek an advantage they do not deserve. When it causes managers to cravenly subordinate legitimate operational considerations to political correctness.
Defining the Law
Title VII of the Civil Rights Act of 1964 does not mandate a general civility code. Nor does it prohibit all verbal or physical harassment in the workplace. Title VII does not extend to harassment per se, but rather harassment that is discriminatory in nature.
Moreover, Title VII only prohibits discriminatory harassment when it reaches a level that is “severe or pervasive.” This limitation arises from the fact that the term “harassment” appears nowhere in the statute’s text. Rather, the key operative language provides that an employer may not discriminate against an individual with respect to his “compensation, terms, conditions, or privileges.” The Supreme Court adopted the “severe or pervasive” standard in order to shoehorn the harassment concept into the “terms” or “conditions” language. Put another way, discriminatory harassment does not become actionable under Title VII unless its severity or pervasiveness is intense enough to effectively change the terms or conditions of the plaintiff’s employment.
Harassment prompted by discriminatory animus cannot be successfully defended on the grounds
that hostile conditions are embedded in the prevailing workplace culture. There is no assumption-of-risk defense to charges of workplace discrimination. Consequently, the common taunt – “if you can’t stand the heat, get out of the kitchen” – is a legally indefensible response to workplace harassment prohibited by Title VII.
But at the same time, there is no federal legal right to work in an environment free of brusqueness, vulgarity, or even profanity when the offensive behavior is devoid of discriminatory content or intent.
In Real Life
In Gross v. Burggraf Construction Co., 53 F.3d 1531 (10th Cir. 1995), a construction supervisor, among other things: (1) described his female subordinate as “dumb,” (2) yelled at her to get her “ass back in the truck and don’t you get out until I tell you,” and (3) stated to co-workers via radio “sometimes don’t you just want to smash a woman in the face?”
In dismissing the action, the Tenth Circuit took into consideration the nature of the industry: “In the real world of construction work, profanity and vulgarity are not perceived as hostile or abusive. Indelicate forms of expression are accepted or endured as normal human behavior. Accordingly, we must evaluate Gross’ claim of gender discrimination in the context of a blue collar environment where crude language is commonly used by male and female employees. Speech that might be offensive or unacceptable in a prep school faculty meeting, or on the floor of Congress, is tolerated in other work environments.”
In Bolden v. PRC, Inc., 43 F.3d 545 (10th Cir. 1994), the plaintiff electrician was referred to by a broad spectrum of ugly epithets, including “d***head,” “dumbs**t,” “**shole,” and “fool.” The court made the unusual finding that the plaintiff was subject to intentional flatulence, accompanied by the remark from the gaseous offender that it was “a kiss for you.”
Although the court acknowledged the “general ridicule” to which the plaintiff was subjected, it rejected the contention that a Title VII hostile work environment existed. Many of the workers harassed one another; many of the workers were the recipients of vulgar and profane jokes. However, the derisive environment in the workshop was universal. The only difference was that the plaintiff could not tolerate the taunting and did not share the crude and rude sensibilities of his coworkers.
In the recently decided case of Russell v. City of Philadelphia, 2016 U.S. Dist. LEXIS 113725 (E.D. Pa., Aug. 25, 2016), the plaintiff complained of gender-based harassment, which included repeated references to her as a “b**ch,” inquiries as to what type of man she liked, and whether she preferred being “fixed.” In granting summary judgment in favor of the defendants, the court observed that, while the comments were “certainly offensive,” they were sporadic in nature. The court cited Second Circuit precedent holding that, for comments, slurs, and jokes to constitute a hostile work environment under Title VII, there must be a “steady barrage of opprobrious” discriminatory comments.
Harassment Prevention in Practice
There are, of course, excellent reasons to control profane and vulgar behavior – not to mention flatulence – in the workplace. Professional dress and demeanor frequently promote professional performance. Conversely, slovenly dress and a lack of discipline often contribute to the degradation of performance.
Employer harassment prevention policies invariably impose a more demanding standard of conduct than that required by federal law. Such an approach is prudent and praiseworthy. Prudent, because nipping harassment in the bud is the best way to avoid liability. Praiseworthy, because any form of harassment can cause real harm to another man or woman. However, harassment prevention training should convey with clarity that company policy reflects the employer’s higher aspirations rather than a replication of federal law. But, what does that mean?
Title VII does not require us to walk on egg shells. And conveying the false impression that it does may breed resentment and damage morale.
Title VII generally does not impose liability based on sporadic off-color comments. And conveying the false impression that it does may be a fast track to coercive threats and litigation by alleged victims.
Title VII mandates that a worker be permitted to earn his or her bread in an environment free from severe or pervasive harassment based on his/her race, color, religion, sex, or national origin.
Let us boil this down to some homespun advice. When you conduct harassment prevention training, let your employees know that they are subject to two standards. The first derives from statute and imposes liability when harassment is severe or pervasive. From a plaintiff’s perspective, this standard presents a high hurdle.
The second standard is the one embodied in the company’s policy. This standard is far more demanding in that it prohibits harassment at any level. Whereas a violation of the company’s more exacting standard will not give rise to liability, it may result in discipline up to and including termination.
The direct message is that the company welcomes employee complaints of harassment policy violations. The company will promptly conduct a full and fair investigation of each complaint and protect the complainant against any form of retaliation. Remedial action will be taken whenever warranted by the facts as determined by the company’s investigation.
The subtext is that there is little to be accomplished by bee-lining to a lawyer or the EEOC when harassment is neither severe nor pervasive in nature. Rather, the most effective avenue of redress is via the company’s internal complaint process.
Effective harassment prevention training should be based on the law as it is, not on what some may want it to be.
Mr. Seham’s advice in this column is especially valuable in today’s working environment; in the office to be sure, but also on board any vessel where, as he explains (as do the courts) the nature of the work environment enters into the discussion. The ongoing tussle over this very topic at the U.S. Merchant Marine Academy at Kings Point brings the issue into the hot, bright spotlight. More than 220,000 credentialed domestic mariners toil in this environment today, on board 40,000 workboats. There’s a good chance many of these individuals are your employees.
Lee Seham is a partner in the labor/employment law firm of Seham, Seham, Meltz & Petersen and General Counsel of the non-profit drug testing consortium American Maritime Safety, Inc.
(As published in the March 2017 edition of Marine News)