Fictional Mailbag– Workplace Comic Creates Hostile Work Environment

By Michael G. McClory - Bullard Law

August 21, 2017

The eclipse of 2017 is a perfect metaphor for today’s (fictional) mailbag letter.  Pete (last name withheld), a management employee who appears to have HR responsibilities, is clearly bothered by two employees who have complained to him about jokes made in the workplace by a third employee (who is a standup comedian on weekends).  Pete wants to retaliate against the complaining employees (seriously).  While we do not provide legal advice, The Bullard Edge hopes that it will give Pete enough information so that he can find his way out of the darkness and into the light.  Here is Pete’s letter and our response.
 
Pete’s Question:
 
I need your help.  These two troublemakers just gave me an ultimatum.  What is that?!  I am the VP of Operations and I make the decisions about what happens here.  Employees do not tell me what to do.
 
By way of background, CC’s Barn is a telemarketing business.  We do not do robocalls.  We specialize in that personal touch with live callers talking to real people.  If you need calling done, you contract with CC’s and we produce results.  The “Barn” in the name refers to our calling floor.  We have 125 calling cubicles in one room.  So everyone works in the same room (except me and my assistant ~ we are located in an office suite just off the calling floor).
 
Let’s get back to the upstart employees.  They demanded that I fire Don and threatened to go to EEOC if I don’t.  Seriously, they are out of line.  Don does occasionally ruffle some feathers, but it is all in the name of art. 
 
Don is a local celebrity.  Every other weekend he headlines at the BBQ Laughatorium, which is one of the best combination barbeque pits – live comedy venues in the area.  Don is the talent, the funnyman.  He has something for everyone.  While his best jokes tend to be “fresh takes” on classic ethnic jokes, he also hits religion, age, disability, insurance agents and airplane food.  That kind of mirrors our workplace.  CC’s is very diverse ~ racially, religiously, age and even economically.
 
Don does not do his routine in the workplace, although he occasionally does “workshop” in the moment.  I have heard a few of these and will admit to having cringed a bit.  However, this is just Don being Don.  Everyone knows he is a stand-up comedian and we should leave it at that.
 
These two employees need to stop acting like hooligans.  They have been harping on this Don thing for weeks.  I bought them both noise cancelling headsets so that they can make their calls and never have to hear Don.  Isn’t that enough?  Do I have to fire him?  No one else is complaining and just about everyone could if they wanted to be all sensitive.  Help me out here.  Bonus points if you tell me I can discipline these two complainers.
 
The Bullard Edge's Response:
 
Congratulations, Pete.  This may be the most ill-advised question The Bullard Edge has ever received.  There are so many problems with the scenario you reported – and none of the problems relate to the two employees who have you so irritated.  It is tough to know where to start, but we will start with the law and go from there.

There are a number of federal laws with which you should be familiar.  Here are a few of the laws that seem to be relevant to your letter.

•    Title VII makes it unlawful for an employer to discriminate against applicants and employees on the basis of race, color, religion, national origin, or sex.

•    The ADA makes it unlawful for an employer to discriminate against applicants and employees on the basis of disability (whether it is a current disability, a record of having had a disability, or a perception of disability).

•    The ADEA protects applicants and employees who are 40 or older from discrimination based on their age.

Similarly, Oregon law also protects applicants and employees from discrimination based on race, color, religion, national origin, sex (and sexual orientation), disability, and age.
 
The protection afforded by these laws is from adverse action based on race or gender or other protected characteristic.  These protections apply in every aspect of employment, including in the hiring process, in compensation, in job assignments, in promotions, in training opportunities, in discipline, and in separations from employment.
 
Your letter in particular raises three huge concerns: hostile workplace harassment; CC’s internal complaint process; and retaliation.  Let’s take a closer look at each.
 
Hostile Workplace Harassment:
CC’s must have a policy and practice of prohibiting hostile workplace harassment (quid pro quo harassment, also unlawful, is not an issue raised by your letter).  Hostile workplace harassment is verbal or physical conduct that demeans or shows hostility or aversion toward an individual because of his/her protected status.  Harassing speech that creates a hostile environment may take many forms, including but not limited to epithets, slurs, negative stereotyping, and/or demeaning comments or labels.  In addition to speech, materials placed on walls, bulletin boards, computers or elsewhere in the workplace may also create a hostile workplace.
 
While you did not share any specific “jokes” made by Don in the workplace, you implied that those jokes might include jokes related to ethnicity, religion, age, and disability.  Those are precisely the types of speech that these laws are intended to prohibit.
 
CC’s Internal Complaint Process:
You said that two employees complained to you about Don, but you did not say whether or not CC’s has a formal internal complaint process.  That is a must.  Consider the following statement from EEOC related to a process for reporting complaints about hostile environment harassment.

“If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”

CC’s should have a policy that employees understand that allows for them to report when they believe they have been subjected to conduct that might be discriminatory or harassing.  The policy should tell them clearly how to make such a report, should assure them that reports will be investigated immediately, and that no retaliation will be taken for having made a report.  If CC’s does not have such a policy, it should adopt one quickly, publish it to employees and provide training.
 
Retaliation:
Your letter includes the following amazing statement: “Bonus points if you tell me I can discipline these two complainers.”  Statements like that make The Bullard Edge queasy. 
 
The employees in question made reports about workplace speech that they found offensive.  As discussed above, CC’s obligation upon receiving these complaints would be to investigate and to take appropriate corrective action.  CC’s should not be retaliating against the employees for bringing their complaints forward.
 
In this case, you all but acknowledge that you know their reports to be accurate (that Don’s workplace jokes do offend on many bases).  Let’s assume you did not know that to be true, that you investigated the complaints, and found no evidence to support the complaints.  Retaliation is also prohibited in that situation.
 
EEOC Last Week:
It is important to note that just last week EEOC filed a federal lawsuit against an employer in New York.  According to EEOC’s press release, “black and Hispanic employees were subjected to repeated racial harassment, of which the company was aware, by supervisors and by co-workers.”  Moreover, “instead of taking steps to ensure that the harassment ended, the company retaliated against employees who complained by firing them or forcing them to quit.  In fact, the EEOC charged, upon receiving two EEOC discrimination charges, the company owner instructed a supervisor to fire the employees who had filed the charges, and when this supervisor refused, he also was retaliated against.”
 
While we do not know if EEOC will be able to prove that these things happened, the fact of the suit is an excellent illustration of the legal peril CC’s could be facing if it does not respond appropriately to the Don situation.
 
In summary, Pete, here are a few of the steps you may want to consider. 

1. Obtain HR training, focusing in particular on compliance with federal and state EEO laws.
2. Review CC’s policies on equal employment opportunity, harassment, and retaliation, and make any appropriate revisions.
3. Review CC’s complaint reporting process to make sure it is complete and understandable and make sure that employees know of the process and know that it is safe to use.

A Final Word
While we do not learn much about Don the weekend comedian, it feels like a safe bet that he views himself as a comic in mold of Don Rickles.  He wants to get laughs, which is ok on his free time.  However, his offensive jokes are not appropriate for the workplace. 
 
Over the past 10 days The Bullard Edge has been following the news closely as it relates to speech outside of the workplace.  The tragic episode in Charlottesville last weekend, and the fallout discussion in the ensuing days, highlights several things that are worth a moment of reflection.
 
First, outside of the workplace folks have a First Amendment right to peacefully express views that are unpopular, that are distasteful, and that by any objective measure may be wrong.  This right is not without limitations, though.  Among other things, the United States Supreme Court has held that speech is not protected when it is “directed to inciting or producing imminent lawless action.” 
 
Second, having the right to express an opinion does not mean the opinion is in any way right.  Some things are just wrong.  The Bullard Edge unequivocally opposes bigotry and hate and any violence in the name of bigotry or hate. 
 
Third, we believe folks ought to resist taking the bait.  Oftentimes, the goal of marches like the one in Charlottesville is to manufacture conflict.  Counter-protesters want to have their voices heard at the same time and flock to the area, creating the kind of event that draws media coverage.
 
Finally, we hope that the nation takes a deep breath and recommits to the principles so eloquently stated in Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
 
Peace to all.
 
The Bullard Edge