A word to the wise about words
n my home computer, I use an e-mail program
called Eudora. It has an interesting little feature that rates
the “mood” of both incoming and outgoing messages.
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Just like everybody else, I get more junk
e-mail than legitimate messages. I also subscribe to several
services, including the Daily Labor Report published by the
Bureau of National Affairs (BNA).
Today, when I downloaded my 16 messages,
along with offers to buy Viagra and Cialis online and
investigate people I know, there was a message from BNA with
two chili peppers.
Yes, Eudora was telling me that the
service I read everyday to keep me apprised of developments in
labor law contained nasty language. “Must be a couple of
sexual harassment cases reported today,” I said to
myself.
As employers now know,
“words” must be added to “sticks and
stones” as things that will hurt them. Despite the most
powerful and revered free speech guarantee in the world
(namely, the First Amendment), free speech does not apply in
the workplace.
Indeed, Andy Sipowicz on NYPD Blue can
tell another detective from another squad to “kiss his
#$%@#,” but references to “#$%@# kissing” in
the workplace carry enormous risk.
In my view, the expression “kiss my
#$%@X” is an efficient, shorthand way of someone saying:
“I understand your position. It is wrong. There is no way
you can convince me otherwise.”
But if it is said in a sexy tone of
voice, is it a request for sexual favors in return for job
rewards? Is it language that creates a hostile environment
based on sex, involving kissing and a part of the body whose
exposure is considered indecent?
Why should employers have to worry about
that?
For years, at least before last
year’s Super Bowl, television personalities and radio
disc jockeys got around the decency rules by using double
entendres and code words. I knew exactly what one former
Washington disc jockey meant when he said: “Hobbledegee,
Bombay Doors, and doodads.”
Nevertheless, once employees in the
workplace know what you’re talking about, the double
entendre becomes just as bad as the real word. George
Carlin’s seven dirty words you can’t say on
television is only the beginning.
How does one regulate workplace speech
when television, radio, and polite talk are peppered with
sexual references and Anglo-Saxon curse words?
How do you handle the situation recently
faced by one of my clients? Two black employees were overheard
referring to each other, not in anger, with the word that has
almost become symbolic with racism. A white employee, who was
offended, complained.
There is no easy answer. I recommend to
my clients to stop foul language, insensitive remarks, and sex
talk whenever possible, regardless of the voluntary
participation of the employees. If employers do not want to
stop the language, their best alternative is to keep a log
detailing all the participants, including quotes from those
participants. It is more difficult for an employee to claim
hostile environment sexual harassment when she herself has used
explicit, vulgar language.
At a bare minimum, employers need to
adopt a policy against sexual harassment that provides a
complaint mechanism. If they do, the failure of an employee to
complain may prevent that employee from suing for sexual
harassment. Otherwise, the employee may quit, then sue months
later claiming that his or her resignation was really a
constructive discharge related to sexual harassment. The
absence of a policy against harassment will assist the employee
in his or her cause.
It appears that sexual harassment laws
are here to stay. Employers need to accept that and deal with
the language of the workplace in the best way they can. Use
common sense, but understand that much of the law concerning
language in the workplace is %#@&*#%$. Be careful.
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