• It Was Just A Joke
  • March 7, 2013
  • Law Firm: Boardman Clark LLP - Madison Office
  • There are a number of cases which focus on the off-handed comments made in the workplace. These comments often later come back as evidence of discriminatory intent or harassment by a manager or company. Almost all harassors claim that they were “just joking.” Sometimes the comments were just intended to be jokes; unfortunately, the jury didn’t laugh when the case was decided. Sometimes the court does rule that the comments were not sufficiently severe to establish a “case;” however, the company still had to go to the time and expense to defend something which could have been avoided altogether.

    This article consists mainly of cases which illustrate the various ways improper comments can bite back in liability.

    Barefoot and Pregnant.” A Wisconsin state employee who overheard a comment about “keeping them barefoot and pregnant” after being rejected for a promotion could take her sex bias claim to trial. Volovsek v. Wisconsin Dept. of Agric. (7th Cir., 2003). The judge ruled that “A comment like ‘keeping them barefoot and pregnant,’ if true, is clearly derogatory towards working women. It suggests that the person making the comment does not want women in the workplace.” This did not decide “the case.” This was a summary judgment ruling, allowing the case to go to trial. Off-handed comments and jokes by managers may not be sufficient evidence to result in a verdict against an employer. However, they are often enough to force the case to trial, resulting in tens of thousands of dollars (and frequently over a hundred thousand dollars) in legal defense fees and administrative costs, not to mention the effect to reputation.

    Police Officer and Firefighter Fired for Off-duty Parade Participation. The off-duty New York employees participated in a Labor Day parade which portrayed ethnic stereotypes. They wore “black face” on a float which received much negative attention in the press. The court rejected the plaintiffs’ off-duty “private” conduct and First Amendment freedom of expression claims. “The First Amendment does not require a government employer to sit idly by while its employees insult those they are hired to serve and protect.” In this overt situation, a public employee’s “right to express his personal opinions must yield to the public good.” Locurto v. Giulian (2nd Cir., 2006).

    Cute Comments Clinch Case! A Wisconsin employee won a gender discrimination case due to being passed over for promotion despite excellent performance. Key in the jury’s verdict was evidence of the manager’s history of gender based “humorous” comments such as “Just like a woman to say that;” “You’re being a blonde again;” and “It’s a blonde thing.” The manager also implied that the female employee did not need a promotion because she had a husband to “take care of her” and the manager did not think she would move to another city for a promotion because she had a family (but never asked her about her willingness to transfer). The court rejected any stereotypical view of gender in employment decisions. Lust v. Sealy, Inc. (7th Cir., 2004). [The trial court awarded $300,000, but the appeals court reduced it by half because Sealy came through with the promotion shortly after the employee filed the case.]

    In Griffin v. City of Opa-Loca (11th Cir., 2001), when informed of sexual harassment inflicted by a city manager, instead of effectively addressing the harassment, the mayor joked, “Heck, if I believe all these rumors, then he has a heck of a libido, and I want some of what he’s taking!” Result: a $500,000 punitive damage award against the city!

    The Company Won the Case, but “Bet” its Profits for the Quarter. Two male managers and a female employee went to a trade show for a few days. While there, the men joked about her sexuality and told a customer they had a bet going about whether one of them could have sex with her. She complained, and after what she felt was an inadequate investigation of her complaint, the employee quit and sued. The court granted summary judgment, finding that the incident was not “severe or pervasive” enough to create a triable harassment or constructive discharge case. A one instance situation must be “severe” to create a cause of action. Further, the managers involved were not the employee’s direct supervisors. Angevine v. Water Saver Faucet Co. (N.D. Ill., 2003).

    The company won, but the point is that “jokes” by managers breached a “Duty of Care” and forced the company to spend tens of thousands of dollars and long administrative hours defending the claim. One can “bet” this destroyed any “profits” from the trade show. So, did the company really “win”?

    Guess Who Laughed Last? A prominently displayed workplace sign reading “sexual harassment will be graded on a 1 to 10 basis” proved that the company knew of its hostile workplace and failed to act after receiving complaints. Dysert v. Whirlpool Corp. (N.D. Ohio No. 3:00C77688 (Sept., 2001).

    Pre-existing environment defense fails; continuing cubicle comments constitute harassment. A predominantly male sales force’s pervasive general vulgarity and frequent gross sexual comments created a sexually-harassing hostile environment. While no comments were ever made directly to the lone saleswoman, the cubicle arrangement made all comments between the salesmen clearly audible throughout the area and impossible to avoid being subjected to. The employer tried to defend the case by claiming the sales floor had always been this way, and the female knew this when she took the job. The court rejected this argument. All workplaces change; once a person objects to illegal activity, the employer must institute changes in its environment. Reeves v. C. H. Robinson Worldwide, Inc. (11th Cir., 2010).

    Manager’s “Loose Comments” Create Case. When a top manager “shoots off his mouth,” the courts may find it to be sufficient evidence to let a case go to trial. In Carter v. U. of Toledo (6th Cir., 2003), a vice-provost gave an African American professor the off-the-cuff opinion that a department was trying to “whitewash” to decrease minority employees. Though the vice-provost was not involved in the department’s employment processes, and had no direct evidence, his high rank in administration gave his words great significance, enough to warrant a trial on race discrimination. The message is that managers should be careful about their loose statements and should be trained about the effects of their words as potentially legally binding.

    Waddling Over the Edge. A senior vice-president of a bank would “waddle” behind pregnant employees. He also referred to a pregnant employee as “Tubs” and “Lard Ass.” A pregnant employee was not amused. She sued, and the court recognized a valid claim for pregnancy harassment under the Pregnancy Discrimination Act (a section of Title VII). Mentch v. Eastern Savings Bank (D. Md., 1997).

    “Prego” was not Wise Choice of Word by Manager. A plaintiff was allowed to proceed to trial in her pregnancy discrimination case, solely based on evidence that her manager nicknamed her “Prego,” and referred to her by that name at least 75 times. He also allegedly suggested she take disability leave during her pregnancy, or quit. The court found this “pervasive” behavior could constitute a hostile, harassing environment and warranted a trial. Zisumbo v. McLeod USA Telecom Serv. Inc. (9th Cir., 2005).

    “Too old to matter” comments create triable case. A 54-year old director of operations for Google was terminated. He then sued for age discrimination. Much of the evidence consisted of age-related comments. The court found that these were not just “stray remarks.” Instead, a decision maker, a 34-year old executive, made ongoing remarks that the older employee was “not a cultural fit,” was an “old fuddy-duddy,” his “ideas were too old to matter” and he was “obsolete.” Prior to discharge, the employee was “encouraged” to apply for other positions in the company rather than face discharge. However, there was evidence that the executive then sent emails to other managers instructing them to not consider the employee for anything he might apply for. Reid v. Google, Inc. (Cal. Ct. App., 2010).

    Be sure you really hang up before you say what you really think¿race and sex comments warrant discharge and union’s refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero tolerance requirements. The next day an employee present at the training left a voice mail message for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to “humorously entertain” his co-workers by launching into a profane, derogatory tirade about the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voice mail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy’s prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011). This is perhaps one of the dumbest cases of the year. Not only was it an inexcusable action, but everyone should know that there is now an electronic record of more and more in the workplace. All phone calls, all messages, all texts, all emails, all Internet use creates a record. All of this is also subject to the court’s Electronic Discovery Rules. So don’t be surprised to have it reappear as evidence.

    “But They Use Those Terms” . . . !

    Coach’s Words were not Motivating. A white college coach had his contract non-renewed for using the “N-word” to his players. The coach “believed that the term had a positive meaning, knowing the context in which the players used the term in joking amongst themselves.” The players, and others in the public, found the comments offensive. Dambrot v. Central Mich. U. (E.D. Mich., 1993).

    Cannot Use Words Describing Self. An African American employee was fired for calling himself the “N-word” after warnings not to do so. He sued the company for discrimination. The Federal Court dismissed the case. The company had a valid reason for enforcing its behavior policies equally. McCoy v. Hess Oil, et al. (D. Vir., 2002).

    A Purity Standard Is Not Required

    Court rejects “political correctness” standard. “[I]t would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.” This was part of the court’s ruling in dismissing the age discrimination case in Hyland v. American International Group (3rd Cir., 2010). A 56-year-old corporate legal counsel’s job was eliminated. A 47-year-old attorney, at a higher level, was retained. The plaintiff’s main evidence was that once, ten months before the layoff, a manager had called him “the old man of the operation.” The court found this stray remark too isolated and unrelated to any tangible decision to constitute valid evidence. It is virtually impossible for people at work not to make occasional reference to age, gender, physical condition, etc. Adopting a “purity” standard would make every birthday card or get well card or comment a future potential age or disability discrimination issue.

    Be aware that “a little goes a long way.” Do not let this case lead to allowing a “little” bit of commentary to creep over the line.

    Pranks And Practical Jokes

    Police and Company Sued for Participating in Practical Joke-Company “Tradition” Went over the Line. A Southwest Airlines location had a tradition of “initiating” employees who passed probation by a surprise mock arrest. The airport police routinely agreed to participate and make the prank seem real. When they “arrested” a new ticket agent and took her away in handcuffs in front of customers and the other employees, she suffered emotional trauma. She then sued. The court ruled that the officers, the police department and the company could all be liable for the resulting harm. The police could not claim any “qualified immunity” because their act was clearly unwarranted and unreasonable by any standard. Feurschbach v. Southwest Airlines Co., et al. (10th Cir., 2006)

    Don’t Squirt; Don’t Throw. Workplace horseplay got out of hand, escalating from verbal to throwing water balloons. The company then implemented a “Zero Tolerance for Horseplay and Violence Policy.” Afterward, an employee squirted a co-worker with water. When asked to stop, he squirted again. The squirtee picked up a two pound chunk of metal and threw it at the squirter. He missed, but it was hard enough to cause injury if it had hit anyone, including the several bystanders. The company fired both the squirter and the thrower. The thrower later claimed (1) provocation and (2) that he was simply trying to “get his supervisor’s attention to the harassment” by throwing the metal. An arbitrator ruled for the company, finding a clear violation of the no violence policy, and that the company’s policy provided a way to raise complaints to management other than by throwing things. In re AGCO Corp. (2004).

    No Direct Danger to Others was the Key. In other cases, discharges have been reversed when an employee lost his temper, hit a piece of equipment and threw things on the floor (In re Whirlpool Corp., 2004) or when an employee threw a pie in the face of a consultant who had previously engaged in some of the ongoing horseplay. In re Clay Equipment (2004). In these cases, there was no proof of real danger of serious harm.

    Hidden Camera and Failure to Act Gets $2 Million Verdict. A co-worker placed a camera under the desk of two women and posted the pictures on a pornographic Web site. The women sued the company for maintaining a hostile environment and failing to take corrective action once it was aware of the situation. The plaintiffs each received $1 million for violation of the State Civil Rights Act, invasion of privacy, emotional distress and negligent supervision and retention (failure to control and failure to effectively discipline the offending co-worker). Kidder v. Ocwen Financial Corp. (Fla., 2005).

    Deputy Chief Sheriff’s video of disrobed officer at hospital violated privacy rights. A female officer had to go through a decontamination process at a hospital, following a job-related exposure. While she was nude in the decontamination booth, with a female nurse, the male Deputy Chief and another male supervisor opened the door a few inches and videotaped the decontamination process. Later that day, the Deputy Chief showed the video to a group of other officers he called into his office, and made comments about the tattoos on the officer’s body. The tape was then placed in a public computer folder which could be viewed by anyone with access to the county network. The officer filed a 42 U.S. Code §1983 case for violation of Constitutional rights. The Department tried to defend by claiming the tape had been made for later “training” purposes. The court did not accept this explanation. It appeared to be a gratuitous invasion of the officer’s Constitutional privacy protection. The court found that there could be liability for the County and for the Deputy Chief in his personal capacity. Doe v. Luzerne Co., et al. (3rd Cir., 2011).

    $1.7 Million to Spanked Employee. Sales managers had a practice of publicly spanking employees who came late to meetings and encouraging the other attendees to jeer and “hoot.” When a woman sued, the company defended by claiming that both men and women got spanked. However, the employee in question was injured, and a jury found the spanking on the buttocks to be sexual harassment and awarded $1.7 million under state law. Orlando v. Alarm One, Inc. (Cal. Sup. Ct., 2006). The company has also settled claims with three other spanked women, and issued an apology to all other employees. It claims it was unaware of the unprofessional behavior of a few sales supervisors. However, part of the verdict was due to the company’s failure to train its supervisors on proper conduct.

    U.S. Supreme Court

    U.S. Supreme Court Rules that “Boy” is Evidence of Discrimination. The use of the term “boy” toward African American employees by a white supervisor is evidence of racial bias. The U.S. Supreme Court reversed a lower court decision in a promotion case. The lower court had ruled that the stand alone term “boy” without reference to race was not sufficient to create a racial connotation. The Supreme Court disagreed and remanded the case. The term has been used so long and in such a pointed way toward African American men that it stands out as a well-known racial insult. Ash v. Tyson Foods (S. Ct., 2006).

    Supervisors Have A Special Duty Of Care—They Should Be Held Accountable For The Work Environment

    Managers have a special duty of care for monitoring Equal Employment Opportunity. When a manager’s “humorous” or “loose comments” are derogatory toward these EEO categories, they indicate a discriminatory attitude which can infect all sorts of later employment decisions. When those jokes or loose comments become evidence in a discrimination case, they are not nearly as funny in the courtroom as they were in the break room.

    Supervisor’s Actions Bind Employer in National Origin Harassment Case. A supervisor who, while at work, commented about Mexicans being liars, was acting within the scope of his employment. A supervisor who hears comments about deportation and laughs, or who participates in comments, inculpates the employer. These supervisors knew about the hostile work environment because they were involved in creating the environment. There was no evidence that the supervisors responded to the correct situation. Therefore, the employer is liable for the hostile work environment. Munoz v. Western Resources, Inc. (D. Kan., 2002).

    Comments were Hostile, even when None of the Group were Present. A company was held liable for a racially hostile environment when a supervisor used a racial epithet about the intelligence of African American employees, even though the same comment had been used by African American employees among themselves, and the supervisor’s comments had been made when no African Americans were present. The court found that the average person would understand that an “in joke” among a group is humor while those listening to the supervisor understood the comment to be intentional bias. Also, the court held that a supervisor’s words carry more weight. Use of discriminatory terms by a supervisor carries greater weight and has a greater effect on the environment than the same comments by co-workers. This difference can create liability for the company. Rogers v. Western-Southern Life Ins. Co., E. Dist. Wis. 1992, affd. 12 F.3d 668 (7th Cir., 1993).

    Supervisors Held to Higher Standard. A male supervisor sued for sex discrimination when he was fired for participating in harassment, while a female non-supervisory employee received lesser discipline for her similar behavior. The court ruled that a supervisor can be held to a higher standard of conduct and fired for lesser infractions than non-supervisory employees. Corbett v. Sealy, Inc. (3rd Cir., 2005).

    Manager Doesn’t Measure Up. An African American manager was fired for sexual harassment. The manager of a mutual funds unit jokingly took a ruler and threatened to measure the “biggest butts” of his female staff; he told a new white employee that she had a “butt like a black woman,” and he engaged in repeated touching and sexual comments about the bodies of the staff. When several women complained, the manager was fired. The manager then sued for racial discrimination. The court dismissed the case. The evidence weighed by the court included the fact that the fired manager had received anti-harassment training, but he “did not consider it to be serious”; he was replaced by an African American supervisor. There was no evidence of any racial disparity in discipline; there was no evidence of bias in the investigation of the complaints about the manager. Randolph v. CIBC World Markets (S.D. NY, 2005).

    Words Or Acts Of Top Managers May Create Undefendable Liability

    Offensive humor by executives and Board members can sometimes create binding liability without the opportunity for the company to correct. The “Faragher/Ellerth Defense” may be unavailable.

    Under the federal laws, in what has become known as the “Faragher/Ellerth Defense,” the Supreme Court set forth standards for an employer to make a viable defense of a harassment case:

    . . . to defeat the charges the employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. at 765 (1998).

    However, the court went on to state that executives, Board members and others who are top “officials” of the organization are to be judged differently. The Faragher decision held that a corporation is vicariously liable for harassment by its executive “who was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”

    Even the improper jokes or actions of family members of business owners or top officials can fit within this scope. In Reeves v. Sanderson Plumbing Products (2002), evidence that the spouse of the company president was “all powerful” and had made several humorous, and not so humorous, statements about Mr. Reeves being “too damned old” was enough for the U.S. Supreme Court to find sufficient foundation of discrimination in a discharge case.

    State Laws can Expand this Liability. Several states have EEO laws which apply the “undefendable” category to the words or actions of any supervisor. So, an employer may be subject to strict liability due to the inappropriate behavior or comments of a supervisor (which can include “lead workers”) without having any opportunity to first know of and correct the problem. The offended employee does not have to use the internal harassment complaint policy or process. One can just file a complaint with the state EEO agency or court system and ask for damages.

    Just Joking Among Friends?

    Not just joking — banter in front of residents warranted discharge. Two aides at a nursing facility turned a discussion of a work issue into banter. They had a several-minute exchange with humorously caustic or sharp remarks in the presence of the unit’s residents. One remark included profanity and an obscenity. The obscene aide was fired. The arbitrator upheld the discharge. Obscene, offensive language violated the facility’s handbook policies, and such language in the presence of the residents was a serious disregard for their welfare. Communicare Health Services & SEIU #199, Health Care & Social Services Union (2012).

    Joking with the boys warrants demotion. A male manager shared a series of sex jokes and other off-color emails with his male subordinates—over 30 emails in a month. None of the recipients complained, but the emails violated the computer use policy and were caught by the IT monitoring system. The manager received a disciplinary demotion, which he challenged as “excessive” under the Civil Service rules. The Civil Service Commission, then the state court, both ruled that though the level of offensiveness was not serious enough to fire the manager, the emails show “an abuse of the authority entrusted to him in light of his leadership position” and clearly warranted demotion and loss of pay. Webb v. State Civil Service Comm. (Pa. Commwth. Ct., 2007).

    Was it harassment or just joking between friends? The court dismissed the national origin harassment case of a Hispanic laboratory worker. Over a five-year period, the supervisor repeatedly called the worker “wetback,” “brown cow” and “stupid Mexican.” The supervisor also said that she had a “Mexican brain” that couldn’t understand numbers. (Even though many comments were outside the Title VII statute of limitations, some did occur within the 300 days before filing, so all could be used as evidence.) The court agreed that these comments standing alone could be racially hostile. However, during that same timeframe, the lab worker and supervisor regularly socialized on and off the job. They and their spouses took a week-long vacation together. She sent friendly greeting cards to the supervisor’s house and described him as a “great boss.” During the whole time, she said nothing about finding the comments unwelcome or offensive. She raised a concern only after the supervisor did not select her for a promotion. The plaintiff claimed she was too intimidated by the supervisor to raise the issue previously, but the court did not buy this excuse. It decided that the social relationship was far “more prolonged and extensive than usual among office colleagues,” discrediting the claim of intimidation. “The failure to report the behavior over this long time, combined with the unusually extensive social relationship she maintained with him would prevent a reasonable . . . finding that she viewed her work environment as hostile.” Bannon v. U. of Chicago (7th Cir., 2007).

    This case is a good warning about “banter among friends.” Though the employer won, it had to go through the EEOC and the federal court and appeal process to do so, spending close to $100,000 in defense costs (if you consider that a “victory”). Friendships often go sour, and what we thought was “banter” becomes “evidence.” One should be able to have friends and fun and humor at work, but both of these cases show that a good rule is to avoid workplace banter, comments, and emails about national origin, gender, sexuality, race, religion and other EEO topics while at work—even with your best buddies.

    Racial Epithets were not “Light-Hearted” Banter. Two African American construction workers won $100,000 each for emotional stress, plus $19,000 each in back pay damages due to discrimination and retaliation. Their supervisor at a construction site began using racial epithets when talking to the African American workers. When two of the workers complained, they were demoted and then discharged. The company claimed the racial terms were just part of a “light-hearted joking relationship.” The court found no evidence to show any such banter relationship. Rather, it found the company “passively tolerated” a hostile work environment. It further found the company failed to produce credible evidence for the demotions and discharges following the workers’ complaints. MCAD and Griffin v. Eastern Contractors (Mass. Commission Against Discrimination, 2008).

    Appropriate Humor For The Workplace

    Any person’s sense of humor off the job is generally their private right and may well be appropriate in their private life (with noted exceptions described earlier). That same humor may not be appropriate for the workplace. Different standards and different laws apply in the workplace, and we trade in a number of our private rights for a pay check. (For instance, the right to sleep late, the right to wear non-safe clothing, and the right to do or say anything we want.) In the workplace, joking about race, sex, age, ethnicity, religion and any other EEO category is not appropriate. Employers have the right and the obligation to set guidelines regarding what is inappropriate.

    Humor is crucial in the workplace. There is a wealth of humor which does not depend on “making fun” of others’ EEO-related characteristics or dipping into the gutter.