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Navigating the minefield of words
Many years ago, I found out that a transcript of the George Carlin routine — “The Seven Dirty
Words You Can’t Say on Television” — was attached as an appendix to a Supreme Court
decision.
Sure enough, there it was in all its glory,
filled with all the words I was not allowed to
say as a kid.
As an employment lawyer, I was aware that
reading the routine in the workplace could
open an employer to charges of harassment,
but here was the United States Supreme
Court publishing it in the official court
reporter. Was it OK to read it or not?
A few years later, I came across a decision of a federal appeals court that described, in lurid
detail, a pornographic movie that was being attacked as obscene.
Reading the opinion of a judge with a reputation for no-nonsense writing describe the “acting”
was an amazing experience. It actually made it sound boring and exciting at the same time.
In this case, there was no question that reading it aloud to a group of female employees of
the firm could be a form of sexual harassment. Words matter.
Words have always been important in the workplace, but the number of words that can get an
employer in trouble seems to be increasing exponentially. It has always been evidence of illegal
discrimination to show that racial and ethnic slurs are common workplace occurrences, but what
constitutes a slur changes over time.
What used to be good-natured kidding is becoming evidence of discriminatory intent.
For example, referring to an older worker as “grandpa” after he becomes a grandfather seems
innocent enough, at least until the worker is fired and sues for age discrimination.
Even comments about how someone is walking could, in the right circumstances, be evidence
of disability discrimination. “You’re moving kind of slow these days, Frank.”
As I have reported in this column, the National Labor Relations Board has taken the position
that workplace policies requiring “civility” and “respect of others” can be a violation of the
National Labor Relations Act because they might prevent an employee from exercising his or her
right to talk to other employees.
One person’s definition of “civil” or “respect” can be very different from another’s. While you
and I know what these policies are designed to prevent, the NLRB does not believe that
employees also know. Ridiculous, but that does not mean you should ignore NLRB rulings
making these words evidence of federal labor law violations.
The EEOC does not want employees using offensive words to each other, but the NLRB says
that offensive words may be necessary for employees to discuss the workplace issues of the
day.
So, it is very difficult to answer the question “when can an employee be fired for calling
another employee a [fill in the insult or slur here]?”
Profanity and potentially offensive words need to be kept to a minimum in the workplace, but
employers have to recognize that this is how some people talk.
Even when employees willingly insult each other as friends sometimes do, this does not mean
that other employees cannot use these trash talk exchanges to justify later lawsuits. It’s a
dangerous path for companies.
Choosing the right words when disciplining or firing an employee is also important, and words
that convey hesitation or vague concepts should be avoided. Calling someone’s performance
unsatisfactory is vague, but stating that the employee is supposed to iron 12 shirts an hour but
averages four is not.
I prefer that if that employee is to be fired, he is told — in writing if appropriate — that he is
only doing 33 percent of the work output expected of him.
Using words that convey regret (“I’m sorry I have to do this” or “I feel bad that it’s come to
this”) only give plaintiff’s lawyers the opportunity to question your conclusion that the employee
deserved to be disciplined.
So, what are the words you should avoid using in the workplace?
Let’s start with any word that is used to criticize a particular race, sex, age, nationality,
disability, or other protected characteristic. Profanity should be avoided for the reasons stated
above.
Vague words like “attitude,” “unsatisfactory,” “inappropriate,” and “crazy” should rarely, if
ever, be used. Describe the behavior that causes the employment action and let the reader
characterize it.
Words like “troublemaker,” “agitator,” and “malcontent” may sound good at first, but these
are also the names some employers use to describe employees in favor of unions or who make
charges against their companies. Words matter.
Unfortunately, lawsuits will continue, and employees and former employees will use the
language of the workplace to make it appear that their charges have merit. Put a stop to
language that is clearly inappropriate, and if necessary, use discipline to end it.
Choose your words carefully, favoring direct language over language that sounds like a lawyer
wrote it.
Lawyers frequently want to be vague, but being vague in the workplace is a dangerous
strategy. Eventually, you will have to justify your words, and the more the words tell the story,
the better.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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