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| Crossing the line? How "colorful" can email and water cooler chats be at work? |
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| 7/22/2008 |
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ROBIN'S PERSPECTIVE: While state and federal laws prohibit sexually charged or offensive speech that creates a hostile or abusive work environment on the basis of sex, there is no law that outright bars the use of sexually coarse and vulgar language in the workplace. Sounds like legal doublespeak, but the distinction is very real and can make or break your case. For instance, in the widely-publicized Friends sexual harassment case, a unanimous California case rejected a woman’s claim that fellow male writers “sex talk” during office meetings rose to the level of sexual harassment. The court accepted that the writers talked about their own sexual exploits, used vulgar terms for female and male anatomies, speculated about the sex lives of the actresses on the show, fantasized about having sex with one of them, and pantomimed masturbation. In dismissing her claim, however, the court found that the language was not focused or directed at the plaintiff or at women in particular, or that men were treated any differently than women among the writers. In addition, the court found that the vulgar talk did not create a sexually hostile environment because the setting was "a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes.'' A virtual hotbed for profanity, it would appear. The comment also highlights a sensitive and long-standing divergence in the law between the right to free speech and the right to be free from offensive speech.
But even when the conversation borders on permissively “colorful,” keep in mind that most companies prohibit the use of language that is sexually charged – either directly (around the water cooler) or indirectly (via email). A recent Pennsylvania case involving a state civil servant disciplined for sending both sexual and non-sexual humor via email to his fellow workers is a good example of how even mildly offensive content can result in an adverse – and completely permissible – employment decision. In Webb v. State Civil Service Commission, the court specifically noted that the email content while inappropriate “did not [rise] to the level of sexually suggestive, obscene or pornographic material.” Even so, the worker was demoted because the emails violated his employer’s internet use policy and reflected poorly on his judgment. It all comes down to that careful balance between what may be illegal and what may be simply wrong.
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