National Clothesline

n my firm’s website, I have an “opinion” piece entitled Abolish Hostile Environment Sexual Harassment. I firmly believe that courts should not meddle in the workplace by regulating pure speech unaccompanied by threats, intimidation, or discrimination.

That does not mean, however, that I am in favor of profanity, bad behavior, and uncivil

behavior by employees and supervisors. Just the opposite. I think that an employer should take steps to promote a good working environment, regulating the language of the workplace to reflect his or her views. I just don’t want courts doing it for them.

Unfortunately, courts do meddle in the language of the workplace, and it is a prudent employer who pays attention to what his employees say to insure that he is not allowing a “hostile environment” based on sex or race to flourish.

Ignorance is not bliss, and employers cannot allow sexually or racially charged speech to take place just because no employees complain.

In recent months, I have seen employers confronted with new behavioral issues that should be addressed under their anti-harassment policies.

For example, one employer received a complaint from a non-minority employee that black employees were addressing themselves by the use of a racially-derogatory term.

Suspecting that the employee was complaining because he was racist himself, the employer was hesitant about taking any action. Because there had been a complaint, however, he needed to take action to stop the use of the offensive language, even if no minority employees complained about being offended. Some words have no place in the workplace.

Several months ago, one of my clients received complaints about a supervisor who was loud, obnoxious, and a notorious slob.

For example, when you went out to lunch with him, he saw nothing wrong with grabbing food off your plate. The supervisor never used profanity or other bad language, but he made people uncomfortable by airing his opinions about everything and everyone.

The company was under no legal obligation to take action, but I encouraged the company to do so because it was affecting employee morale. And I emphasized that the company needed to insure that the supervisor did not retaliate against employees who complained. It was a touchy situation, but the supervisor was creating an atmosphere where employees might be forced to quit to get away from the bad behavior.

Understanding how important it is to retain good employees, the company sat down with the supervisor and attempted to work out a solution. So far, it has had positive effects.

The really tough questions arise when a poor employee attempts to take advantage of a sexual harassment reporting policy to keep from being fired. On several occasions, I have seen complaints follow on the heel of a poor evaluation or some sort of disciplinary action.

Employers need to address the harassment complaints, but they also need to continue to discipline and possibly discharge poor employees.

No employer wants to defend a retaliation claim, but no employer wants to keep a bad employee just because she complained that she overheard a supervisor use potty language three months earlier.

Every employer needs to have a policy for reporting potential sexual harassment, which can encompass issues of civility and professionalism.

The courts have recognized that the existence of such policies can insulate employers from lawsuits for hostile environment sexual harassment. The key, however, is to make sure that the company treats complaints seriously and takes appropriate action in each case.

Employers also need to document performance and disciplinary problems as they arise. If they do not, an employee may be able to keep his or her job longer than necessary by making weak claims of hostile environment harassment.

Good employers can walk the fine line between having a workplace where civility and professionalism are fostered, and having a workplace where the employer feels that he must police the speech of employees.

Take charge of the language of your workplace, and hostile environment claims should be nonexistent. Fail to act, however, and you may find yourself with an uncivil workplace and a harassment lawsuit.

Frank Kollman is a partner in the law firm of Kollman & Saucier, PA, in Baltimore, MD. He can be reached by phone at (410) 727-4300 or fax (410) 727-4391. His firm’s web site at www.kollmanlaw.com has articles, sample policies, news and other information on employee/employer relations.