“Boys Will Be Boys Isn’t a Defense”

By Howard Mavity
Published On: Tuesday, September 2, 2014 10:42 AM

Labor lawyers often hear, “that just won’t work in the real world” and are accused of being impractical, especially regarding civility and professionalism in the workplace. “People cuss, people tease, language has changed, snark is in. Do you want a frigid workplace? Lighten up.” The fact is, these things make employment law claims more likely.

The problem is that the truly awful harassment cases (e.g., a noose hung by a toolbox, repeatedly calling someone a faggot or employees showing porn to their colleagues) were not based on one isolated incident that came out of the blue. Most egregious situations started with seemingly harmless teasing and “normal” workplace cursing. Behavior worsened over time. Jokes became cruder. Teasing turned mean.

Why Are Such Things Still Happening?

Employers maintain no-harassment policies and complaint lines. They conduct sensitivity training and regulate electronic communications. But problems still arise. Consider a few factors that contribute to harassment, discrimination and retaliation claims.

• Do not base anti-discrimination and harassment efforts on the assumption that employees, including managers, will use good judgment. Common sense isn’t always common.
• People have changed. Cursing and sexually candid communications have become much more common among “good kids,” and now these people work for the company. Classic civility has wrongly been deemed passé.
• Workers now share more personal information, but are more sensitive to real or perceived slights.
• “Bullying” behavior won’t be tolerated; nor should it.
• Social media has multiplied the opportunities to hurt or offend others, while simultaneously contributed to employees sharing unprofessional personal matters at work.
• More harassment and hostile environment claims are raised based on race and national origin than gender.
• Employers have not effectively and consistently trained and developed frontline supervision.
• Management edicts rule, but don’t model professional behavior.

Beyond recognizing the above challenges, what should one do?

Commit to actively demanding “professionalism” and “good judgment” from employees. No shop, factory floor or construction site is too crude to demonstrate professionalism. No work is too crude to be treated professionally. Set an example and demand more from employees than not violating the no harassment policy. Connect customer service with workplace behavior. Because of recent National Labor Relations Board challenges of conduct codes, give clearly define examples of unprofessional work behaviors.

Deal with workplace bullying. Horseplay and teasing often trigger employee claims that they were mistreated because of their disability condition, race, sex or other protected characteristic. Few states have enacted anti-bullying laws, and about the only way to sue an employer is to frame bad treatment as “discrimination.” So don’t be surprised when acting abusively gets the employer sued.

Bullying is difficult to define. It’s more than just being a “jerk.” Workable definitions were set out in recent surveys, including a Monster Global poll that determined that 64 percent of respondents believed that they had been bullied – either physically hurt, driven to tears or suffered harm to their work performance.

Train supervisors to catch teasing and horseplay before it goes too far. One occasion of cursing or telling an off-color joke should not create a hostile environment. It is doubtful that any workplace will ever be devoid of cursing and horseplay. Instead of looking for a line that must not be crossed, remind employees to keep it work-like.

Someone may indeed be “over-sensitive.” The company may be exonerated after a lengthy trial, but no employee wants to go through a humiliating investigation and trial. Teach employees, especially frontline supervisors, to recognize that not everyone wants to play, and often the ones who most dish it out are the ones who can’t take it. So they sue.

Explain in a straightforward fashion the ways that social media can cause trouble. Instagram and texts are more worrisome than Facebook, although extraordinarily bad stuff continues to be posted on Facebook. The electronic word is tone-deaf. The reader may not recognize one’s witty humor.

So what’s a test for good behavior? Tell an employee or manager to describe some coarse joking, cursing and pranking, involving men and women or people of different ethnicities. Now ask the employee to imagine standing before an irritated judge and jury and defending his actions by explaining, either “you had to be there” or “I was just playing.” It doesn’t work. Managers and employees must know that any email or conversation could end up as evidence, so don’t say anything that could be used as evidence.