Swearing at work: When is it considered harassment?

AuthorHyman, Jon
PositionWHAT I WOULDN'T DO: Legal Updates from HR's Trenches

According to one survey, 57% of American employees admit to swearing at work. But where is the line between swearing as harmless workplace banter and swearing as harmful, unlawful harassment?

The seminal case involved a female plaintiff's offense to the salty language used by male co-workers in nearby cubicles. (Reeves v. C.H. Robinson Worldwide)

In ruling on whether that language (and the employer's inaction towards it) could constitute an unlawful sexually hostile work environment, the court cited a difference between general, gender-nonspecific swear words--such as s**t and f**k--as compared to gender-specific epithets such as b**ch, and the granddaddy of them all, c**t, which can be actionable as sexual harassment.

Here's what the court said:

Words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff... It is enough to hear co-workers on a daily basis refer to female colleagues as 'b***hes,' 'w**res' and 'c**ts,' to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: 'and you are a bitch, too.'

As a practical matter for the workplace, this means:

* General vulgarities are not actionable as harassment.

* Severe or pervasive gender-specific words or phrases are actionable as harassment even if the words are not specifically directed at one...

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