Sunday, November 10, 2013
While Justice Scalia's caution that Title VII is not "a general civility code" has been repeatedly invoked, it hasn't stopped the spread of employer civility codes. Such rules probably owe something to the desire to sanitize the workplace as a prophylactic against sexual or other harassment claims, but there also seems to be a deeper concern about, well, civility.
A quick Google search reveals warnings that swearing can get you fired, countered by claims that profanity improves productivity, and arguments that cursing will make you more popular. As is often the case, social science -- or at least the blogosphere -- seems to leave us with fewer answers than questions.
In any event, employers seem to be responding to the issue with policies that bar profanity, regardless of whether it has any connection to actionable harassment. Some how-to versions of the policy have their amusing side, including one source that sounds like a 12-Step program for recovering swearers and recommends coming up with socially-acceptable substitutes for profanity. Egad.
While "profanity" originally had very strong religious connotations, the term today is used in this context to embrace coarse or vulgar speech. Barring racial slurs or sexualized references obviously has a close connection to hostile work environment claims, and it's not hard to see how other terms can implicate such claims under age and disability antidiscrimination laws. That said, there really are coarse insults that are not gender specific nor especially sexual -- "asshole" comes to mind, as do common words for excretory functions.
But a recent district court case, Griffin v. City of Portland, raised yet another potential problem for some varieties of profanity -- this time reverting to in the term's original meaning of "desecrating what is holy or sacred." The claim was harassment on the basis of religion. While there was other evidence of hostility to plaintiff because of her Christian beliefs, a recurrent theme was her objections to others taking God's name in vain. One dramatic incident was triggered by her objections to the use of "Jesus Christ" as an expletive.
The court denied summary judgment to the City, but did so by finding a fact question of whether the references to God were because of plaintiff's religion. Presumably, proof that such usage was part of the speakers' normal speech patterns would avoid any liability. The court wrote:
For instance, it is unlikely that a coworker who used a curse word without knowing that the word offended Ms. Griffin for religious reasons used the word around Ms. Griffin because of her religion. Rather, such a coworker likely used the curse word without contemplating whether it would bother or offend anyone, merely because he or she was in the habit of using profanity. Evidence that the coworker quickly apologized and refrained from cursing in Ms. Griffin's presence thereafter would bolster the argument that that coworker had not cursed because of Ms. Griffin's religious beliefs, although such evidence is not necessary.
Makes sense, right? But what if the co-worker, when told of Ms. Griffin's objections, did not cease using such language? Not responding to a civil request to avoid offensive language might not be praiseworthy, but does continuing a preexisting speech pattern show intent to harass or just garden variety insensitivity? Or even, if we believe some of the commentary, an inability to change ingrained patterns.
Of course, an antiprofanity policy would tend to insulate employers from having to worry about these concerns -- although enforcing such a policy poses its own problems. Nevertheless, cases like Griffin might well add impetus to what already seems to be a growing phenomenon in many workplaces.