How to Deal

Address the Use of Profanity Head-On

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By Lily Garcia
Special to The Washington Post
Wednesday, May 27, 2009; 4:50 PM

Is profanity a component of a hostile work environment? Loud (shouted) profanity about all manner of things from work situations to uncooperative computers... regular outbursts. Name-calling directed at third parties but not at the people within earshot. We know it is completely unprofessional and there is an anger management problem here, but is it a hostile work environment issue?

Profanity is often cited as a component of a hostile work environment. Because of the environmental degradation that results when profanity is pervasive, epithets based on sex, race, religion and other personal characteristics protected by law seem to have a way of gaining acceptance. The use of profanity comes up frequently in the context of sexual harassment cases simply because profanity by its nature seems to invite sexually explicit jokes and commentary.

The law does not dictate what is appropriate or professional in the workplace. It merely carves out a narrow subset of behaviors that Congress and the courts have deemed so despicable and pernicious that a victim should have the opportunity to formally seek damages. As a general rule, your workplace can be disrespectful, degrading and positively hostile. Yet, unless you can make a connection between that hostility and a category protected under law, the conduct is not illegal. In your case, if the profanity that you are hearing is accompanied by sexual, racial or other epithets, even if they are not directed at you, then the conditions are being created for bona fide hostile work environment claim.

Employment lawyers have long seized upon this distinction to mount what is commonly known as the "equal opportunity harasser defense." The reasoning is simple: as long as everyone in the workplace is treated in an equally reprehensible manner without regard to their protected characteristics, then the law has not been broken.

The Ninth Circuit Court of Appeals blew a sizeable hole in the "equal opportunity harasser" defense a few years ago when it rendered its opinion in EEOC v. National Education Association. Thomas Harvey, a senior employee of the NEA, was a big bully with a nasty habit of yelling disrespectfully at his primarily female employees and using profanity. Although he was by all accounts a short guy, he managed to be physically threatening, shouting and shaking his fist in people's faces, lunging at them across tables, grabbing them by the shoulders, and even creeping up behind them to watch them silently as they worked. The thing is, Mr. Harvey never used sexually inappropriate language. He did not use gender-specific terminology, he did not engage in lewd conduct, nor did he do or say anything else to suggest that his hostility was based on sexual desire or discrimination. Because of this, a lower federal court in Alaska held that the women who worked for Mr. Harvey had failed to demonstrate that his harassment was "because of sex" and dismissed the case.

The Ninth Circuit reversed that decision. The Court held that Mr. Harvey's employees did not need to show that he was treating them so poorly because of their sex. It was enough for them to show that the impact of his behavior on women was objectively and subjectively harsher than on men. In other words, even though Mr. Harvey was arguably an "equal opportunity harasser," his conduct was still potentially illegal because it hurt women more than men.

It is worth mentioning that Mr. Harvey's anger management problem was common knowledge throughout his organization. Yet, his behavior went unaddressed for years until a lawsuit was finally brought. In the end, two of the employees who brought the lawsuit quit under duress and at least one of them consulted a psychologist to help deal with the effects if Mr. Harvey's abuse.

It does not look as if other jurisdictions are lining up to adopt the Ninth Circuit's more expansive view of what constitutes an illegally hostile work environment, and lawyers in the 42 states beyond the Ninth Circuit continue to successfully defend their clients on the basis that the work environment was made equally unpleasant for all. Nevertheless, the story of Mr. Harvey teaches an important lesson about the importance of swiftly addressing abusive workplace conduct.

Let's assume for the moment that your co-worker's use of profanity and demeaning language does not create a "hostile work environment" within the definition of the law. Does that in any way make you feel better about having to endure his behavior? If you supervise this employee, you should address his or her conduct at once. If you have only the pleasure of working alongside this individual, report the behavior to your human resources department or some other person designated under your organization's anti-harassment policy.

I cannot predict with any certainty how the story of your workplace will be written. But I can assure you that the choice you make now about whether and how to address the use of profanity and name-calling is immensely important.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.


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