Dealing with Foul Language in the Workplace | DCR Workforce Blog

Dealing with Foul Language in the Workplace

Where? At the workplace! Is the use of vulgarities and obscenities a reality of the modern workplace? Who knows? While many may find the use of profanity and rude behavior offensive, there are no employment laws that require people to be respectful and polite to each other. Contrary to popular belief, anti-discrimination laws do not consider the mere use of vulgar language to constitute a “hostile work environment”.

Clearly, the use of ‘vulgar’ or ‘inappropriate language’is becoming more frequent in all aspects of society, including the workplace. In fact, in some companies simple expletives are viewed as part of the workplace culture and associated with ‘passion for the work’. Scientific American cites a variety of researchers that link the use of swear words to stress relief. Opponents, however, believe that vulgarity dilutes workplace morale, intimidates employees, and causes managers to view an employee who uses expletives as unfit for promotion because of his perceived inability to control his temper.

While one could argue either side of this issue, one fact is clear: Human Resources personnel are walking a fine line between protecting the First Amendment rights of workers while maintaining a safe and professional work environment. A review of recent litigation sheds some light on the courts’ view of this issue.

It took the National Labor Relations Board (NLRB) nine years to decide that the yelling of obscenities at a manager in a scuffle by Joe Agins Jr., a barista at Starbucks did NOT merit him losing his job. The argument was triggered when Mr. Agins was participating in an activity to unionize workers. The decision was based not on whether Mr. Agins used profanity, but whether Starbucks violated the worker’s right to pursue a collective bargaining agreement.

Still pending in courts is the case of Nick Aguirre who was overwrought with his working conditions. Two months into a sales job with an auto company, he lost his cool and resorted to profanities and threats when dissatisfied with the responses he was receiving to questions regarding working conditions. He actually told the owner that he was stupid, that nobody liked him and that everyone talked about him behind his back. Mr. Aguirre was fired. Early indications are that the NLRB will side with Mr. Aguirre, viewing the situation as engaging in protected concerted activity – which could include a discussion or complaint about wages, hours, or working conditions.

Finally, there is the case of Griffin vs. City of Portland. Ms. Griffin filed a religious harassment suit. After numerous complaints regarding co-workers who repeatedly took the Lord’s name in vain, a supervisor chastised Ms. Griffin for being a religious fanatic. In this case, the court differentiated between simple expletives that do not indicate religious ideas and profanity that is expressly directed at one’s religious views. In other words, the courts did not take issue with the workers who casually used religious references, but did determine that the supervisor’s comments – directed specifically at Ms. Griffin – constituted a hostile work environment.

Important Insights for Employers:

Employers have a responsibility to maintain a workplace which is safe and has civilized interaction between all members of its workforce. But, the use of profanity does not automatically qualify as a legal issue. In considering lawsuits, the NLRB and other government agencies use the four-part test devised by the NLRB:

  • NLRB’s four-part test considers 1) the place of the discussion; 2) the subject matter of the discussion; 3) the nature of the employee’s outburst; and 4) whether the outburst was in any way provoked by the employer’s unlawful actions or unfair labor practices.
  • Asking an employee to leave if he or she is unhappy with the way the business functions is coercive and hence violates the law; especially if the coworkers also agree that there are grounds for complaint.
  • Egregious conduct which goes well beyond a reasonable amount of impulsiveness, including a verbal outburst and even physical threats, make one forfeit protection under the National Labor Relations Act (NLRA).
  • Gender-related insults and racial epithets are actionable under federal and state worker protection laws,but profanity—even if it’s excessive—is not.

Employers’ Course of Action

Employers can and should take action to create a culture and work environment that enables everyone to maximize their contribution to the company. DCR advises the following:

  1. Extend your sexual harassment and discrimination policy to address appropriate use of language. Specifically and explicitly ban Slurs including all racial, ethnic, religious, and gender-based insults and Slang including jargon used to describe sexual acts, body parts and bodily functions.
  2. Specify the disciplinary measures that will be taken for non-compliance with the policy. This can preempt potential lawsuits and strengthen your company’s position if legal action is taken.
  3. Train current workers on this new workplace rule, and clearly indicate the date that the policy goes into effect.
  4. Train managers and supervisors on proper handling of this issue. Stress that supervisors that use foul language in an attempt to intimidate workers will be dismissed.
  5. Universally enforce the policy.
  6. Don’t forget the non-employees working in your facilities. Ensure that agreements with staffing agencies understand your policy, and are contractually bound to comply with it. Require independent contractors to also commit to policy compliance.

Crafting a “language policy” can be complex – the policy must reflect the culture and work environment. Each company differs in where the line should be drawn between tolerance of simple expletives and excessive offensive language. Let us know if your company struggles with this issue. We’d be interested in learning more about ways in which you have addressed the issue.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.

One response to “Dealing with Foul Language in the Workplace”

  1. Angela says:

    Message

    We are a volunteer group running a Breakfast Club for the homeless and disadvantaged. To deal with the ever-increasing use of profanity and language deemed offensive by some, over a wide age and culture range of people, we crafted the following notice and pinned it to the wall. The use of bad language has dramatically reduced and people seem to be more aware of the sensitivities of others around them as a result. No smacked wrists, no rules to follow, just courtesy and awareness!

    ‘Please help us to maintain a welcoming, relaxed, atmosphere for everyone attending Breakfast Club by being aware that not everyone is comfortable around profanity. Thanks :-)’

Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.