In Determining If Profanity Is Legal, There's No Test to Swear By

By Lily Garcia
Sunday, June 7, 2009

Q I have been hearing shouted profanity about all manner of things, from work situations to uncooperative computers, as well as people who are not within earshot being called names. We know it is completely unprofessional and that there is an anger management problem, but is it a hostile work environment issue?

A 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 law does not dictate what is appropriate or professional in the workplace. It merely deems a narrow subset of behaviors so despicable and pernicious that a victim should have the opportunity to formally seek damages. Your workplace can be disrespectful, degrading and positively hostile, but the conduct is not illegal unless you can make a connection between that hostility and a category protected under law. 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 could create a 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 U.S. Court of Appeals for the 9th Circuit 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, had a nasty habit of yelling disrespectfully at his primarily female employees and using profanity. He also was physically threatening, shouting and shaking his fist in people's faces and grabbing them by the shoulders. But he 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 dismissed the case.

The 9th Circuit reversed that decision, holding that Harvey's employees did not need to show that he was treating them so poorly because of their sex. Even though Harvey was arguably an "equal opportunity harasser," his conduct was still potentially illegal because it hurt women more than men, the court said.

It does not look as if other jurisdictions are lining up to adopt the 9th Circuit's more expansive view of what constitutes an illegally hostile work environment. Nevertheless, the story of Harvey teaches a crucial lesson about the importance of swiftly addressing abusive workplace conduct.

Let's assume 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.

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