Workplace Conduct Policy and Guidelines for Swearing
As with any human resource issue, there should be a workplace policy in place. Among other things, such a policy should set some basic parameters on language. For example, it may provide that language used in the workplace should be civil (even if the word "civil" is open to interpretation) and should not be harassing or discriminatory. It might provide that derogatory terms should not be used. Sometimes, there is a specific provision addressing profanity or swearing.
While all employees are bound by the terms of a workplace conduct policy, how strictly an employer follows that policy can vary depending on the circumstances of a given situation. For example, I have often found myself in a position where we will have a policy of no swearing or cursing at work. A complaint arises and sometimes the appropriate discipline consists of a mandatory training program. Other times, the infraction is serious enough that discipline would consist of a written warning or suspension. However, for expletives directed at a co-worker or an angry tirade involving use of profanity, particularly in front of customers, we have imposed termination. On the other hand, in an office or inside sales environment, the tolerance for language may be different than in an industrial setting with customers in attendance.
Some employers impose a stricter policy with respect to language provided that the behavior is not considered to be protected concerted activity under the National Labor Relations Act (the "NLRA"). For example , a customer service employee is on a call with a customer and the customer keeps yelling. The employee’s frustration boils over and expletives come out in the context of him or her venting the frustration. The employee goes on a tirade that starts off, "This customer is such a jerk. I cannot stand his ass." That tirade continues with profanities and lasts 20 seconds. The employee posted the tirade on Facebook, attended a union organizing meeting with coworkers on her break and then returned to work, where she met with a supervisor and a human resources representative about the tirade. The employee’s discipline consisted of a two or three-day suspension. The following day, the employee was seen leaving an anti-union meeting. The next day, the employer tells the employee she is terminated. Does this violate the NLRA? The answer is likely no. The employee’s tirade was not related to the terms and conditions of employment, but rather was a personal complaint about the customer. Nonetheless, that tirade, made in the presence of a customer and recorded by the employer, was sufficient to justify discipline up to and including termination because the employee had no legitimate expectation of privacy. The anti-union meeting was legally protected concerted activity. Nevertheless, it appeared that the employer terminated the employee for the tirade and not for anti-union activity, which is also legally protected concerted activity.
The Legal Consequences of Swearing at Work
The use of swearing in the workplace can not only be an HR or significant reputational issues, it may have legal repercussions too. The unexpected fallout for an employee may be a civil ‘harassment’ suit (including sexual harassment) against them and even for the employer. It is also important to bear in mind that what is seen as swearing may vary for different people – for instance, that "damn" or "goddamn" is not swearing for some people, but a "f*ck" is.
For example, a case in the 11th Circuit Court of Appeals (Burlington Northern & Santa Fe Railway 2004) shows what happens when swearing crosses the line and leads to a legal lawsuit. In this case, a railroad engineer was the victim of sexual harassment by co-workers using explicit language. The engineer had made complaints about repeated and persistent comments of a sexual nature. When the co-workers were finally reprimanded, things got worse. The co-workers began to call the engineer "bitch", "cunt" and other expletives during shifts for several months, including in front of supervisors. For two years, the co-workers’ behavior continued and escalated to the point of grabbing the engineer and exposing themselves. The Court of Appeals found that the railway company was liable for the conduct due to their failure to respond appropriately to the complaints about the behavior. It also held that the behavior was severe enough to constitute a ‘hostile work environment’. Sexual harassment is a type of ‘discrimination in the workplace’ but proving that the routine occurrence of swearing or bad language in the workplace offensive is difficult. However, in the case above, the employee was able to clearly demonstrate that the conduct was of a type which the courts have found to be humiliating, demeaning and degrading.
Not all swearing in workplaces is harassment however and not all harassing behavior is swearing. There are fairly few cases examining swearing in the workplace in the context of ‘harassment as discrimination’ with most being very case specific and unlikely to be of much assistance. Courts have generally been reluctant to interpret ‘swearing’ as ‘harassment’ or ‘discrimination’ or as unlawful. That being said, an employee’s use of swearing and other abusive language can nevertheless give rise to grounds for dismissal.
The Fair Work Commission’s consideration of swearing in the workplace is limited. Indeed, recent FWC decisions show that there are limits to what might be seen as harassment in the workplace when abuse has been used. For example: • Kennedy v Workpac Pty Ltd (2018) found that use of abusive language can constitute a valid reason for summary dismissal. A security officer of rather brief employment was dismissed after using inappropriate language to his colleagues. • Shcherbakov v Superior Food Services (2017) again found that use of abusive language can constitute a valid reason for summary dismissal. • Morante v Citywide Facility Services (2015) although involving rather specific circumstances, again held that the use of abusive language can constitute a valid reason for summary dismissal.
In short, a fairly consistent line emerged through these recent FWC decisions that "personal insults, foul or abusive language may justify summary dismissal where such misconduct is repetitive or widespread". These cases may also reflect an indication that the FWC will take a dim view of recalcitrant employees in the face of warnings about swearing, even if no physical threats occur.
Employer Obligations and Employee Entitlements
In considering the balance between employer responsibility for a respectful workplace or "culture and climate" and an employee’s right to freedom of expression, the law takes a very nuanced approach. For example, an employee is unlikely to be successful if he/she claims Charter violations in the workplace based on the company culture and climate. In other words, simply regulating conduct in accordance with a mandated company culture is not discriminatory.
On the other hand, s. 713 of the Canada Labour Code entitles an employee the right to refuse work that constitutes a danger to the employee while the danger persists, so long as that danger results from either "physical injury" or "physical damage to a person’s health". The code does not expressly include psychological injury or damage to mental health. In other words, an employee cannot refuse to work with someone who swears or uses any "bad" language because it is offensive personally, unless it interferes with physical safety.
An Alberta case, R v. Woodward (1999), held that if what an employee is objecting to is "psychological comfort" rather than "physical safety", it will not constitute just cause for refusing work. The case went on to say that even if "psychological danger exists, the employee may have to bear the additional burden of suffering that danger, at least initially" (para. 53). There must also be a reasonable possibility that the danger will cause bodily harm or illness. It is not enough that it might affect their mental state.
On the other hand, the Criminal Code does contain a Criminal Harassment provision that allows employees to complain to the police if they believe they have been harassed by a fellow employee (or a supervisor) and provides hefty penalties including imprisonment of up to five years for repeated behaviours such as threatening, watching, following, telephone calls or other unwanted contact that is known or ought to be known to cause alarm, and a prohibition on access to a home or place of work.
In short, when it comes to swearing at work, employers are obligated to balance a considerately tolerant approach that allows employees a fair amount of leeway with swearing at work, with the legal obligation to address legitimate concerns of employees, both on their own and through established grievance procedures as soon as they arise. Some companies have instituted a "no swearing policy" but that does not suggest that employees actually must comply with the stated policy. It merely states that the company reserves the right to take action in the future, should adequate notice of the "no swearing policy" be given.
Notably, however, the British Columbia Labour Relations Board in70 ULC 234 (2009), issued an order stating that employers are required to take steps "that could reasonably be expected to put an end to the misconduct", thereby "making it clear to the perpetrator that their behaviour is unacceptable and that disciplinary action will occur if there is a recurrence". In sum, employers have a responsibility to require employees to comply with lawful workplace policies to the extent that employees are bound the collective agreement and the law.
Effect of Swearing on Workplace Relationships
The impact of swearing in the workplace can be far-reaching and often depends on a number of contextual variables, both on the macro level and on an individualized basis. Psychological research on swearing in the workplace suggests that cathartic and performance-inducing value of profanity often conflicts with other considerations, such as appropriate demeanor, acceptance, professionalism (i.e., workplace etiquette), decorum of communication and established norms of respect.
Research highlights that, among the different categories of swearing, "taboo" swearing is perceived to have stronger and greater negative connotations than swearing about other concepts (e.g., swearing related to death or diseases). Furthermore, the more personal the reference , the more pronounced the negative perception. Linked to this concept of taboo is the idea of appropriateness, which is key to understanding the potential impact of swearing on employer-employee relationships.
An important factor in evaluating the extent to which organizational swearing policy non-compliance may impact legal protections is the issue of precedent-setting. For example, if an employer tacitly or explicitly accepts one employee’s use of profanity, that acceptance may set a culture-wide precedent for other employees that may potentially reinforce the idea that swearing is acceptable in the workplace – potentially exposing the employer to recalcitrant employees using swearing as a shield to newly assert that what the employer previously tolerated is now not permissible.
Dealing with Swearing Effectively
While swearing has always been a part of business workplaces, the best way to address swearing in the workplace is to have a clear swearing policy that benefits both the employees and the employer. Policies should be presented to employees at the time of hire. After that it is important to review them to ensure proper practices are being followed and that employees are held to these standards. As previously noted, swearing may not be acceptable to employers, but there are ways to minimize liability. In addition to developing a swearing policy, it is also important that businesses provide training to its employees and supervisors. Training is an important and on-going process that can be applied to a variety of situations. In situations with significant safety concerns, providing additional training on how to address swearing may be necessary to prevent risking employee safety. Another good measure for businesses is maintaining a moral harassment team to help handle harassment issues in the workplace. Supervisory training should also be provided regarding appropriate methods to respond to inappropriate comments and behaviors. Training can also be very beneficial because it will allow the supervisor to learn how to address the situation without making it worse. In the event of a problem in the workplace, shock cannot be the initial reaction of the supervisor. There are many ways a supervisor can respond to inappropriate swearing between employees, including: Even if there was a private conversation, the supervisor should follow up with the employee to ensure the problem has been resolved. Good communication ensures that there are no more problems with the employees involved. When considering these suggestions, it is important to keep in mind the seriousness of the comment. In order to determine whether the matter should further be dealt with by human resources, ask yourself the following: If the answer is yes, then the matter should be referred to human resources. While it may seem that not all comments are worth escalating, it is better to err on the side of caution and report everything. If possible, it is important that businesses address any swearing issues when they first arise. This will minimize the risk that swearing may be a widespread issue that is out of control.
Case Studies: Learning from Practical Situations
To test the guidelines outlined above, let’s look at a couple real-life examples involving swearing in the workplace.
Case Study 1: Foul Language Permitted
In Huttner v. Beaverton Foods, Inc., the plaintiff was an employee who was "bantering back and forth" with her supervisor. At one point, the plaintiff said, "Don’t make me speak German — I know enough to give you shit." Huttner, a German-speaking employee of Beaverton Foods, Inc. ("Beaverton"), later informed her direct supervisor that she did not appreciate being sworn at and filed a complaint with her Human Resources Department. Beaverton promptly removed plaintiff’s supervisor and determined that his comments were "unacceptable" and "should have been addressed sooner." Beaverton told the plaintiff that its goal was to create a less profane workplace. Huttner quit later that day and filed a lawsuit alleging a hostile work environment based on the manager’s inappropriate comment. Beaverton moved for summary judgment and the court granted Beaverton’s motion, finding that because Huttner herself had engaged in a verbal barrage with her supervisor, which included swearing, and did not find it offensive, her allegation of Huttner’s hostile work environment claim failed as a matter of law.
Case Study 2: Foul Language Not Permitted
In Holly E. Hoyt v. St. Mary’s Medical Center, Plaintiff Hoyt was an employee for outpatient services at St. Mary’s Medical Center in West Palm Beach, Florida. St. Mary’s terminated Hoyt’s employment in 2007 after she used "inappropriate, vulgar and unprofessional language" and gestures while in the presence of several of her co-workers. In Hoyt’s words, she had made an obscene gesture and swore at, and made additional derogatory remarks toward, her co-workers . Ms. Hoyt’s co-workers complained to a supervisor, who then filed an incident report, which led to Hoyt’s ultimate termination. After her termination, Hoyt filed a lawsuit in the United States District Court for the Southern District of Florida claiming a hostile work environment due to sex. In reviewing the evidence, the Court found that Hoyt had engaged in "inappropriate, vulgar, and unprofessional speech and conduct . . .." The court noted that all employees were expected to conduct themselves professionally, and found that Hoyt purposefully swore and made obscene gestures toward her co-workers after they had repeatedly asked her to stop . . .. Hoyt continued to subsequently send text messages to a co-worker that included "numerous vulgarities and obscenities while making lewd observations regarding her coworkers." The Court opined that while it might be that Hoyt was upset and the work environment was hard, her behavior "was not only unprofessional, but also unacceptable." Therefore, the Court found that Hoyt failed to establish a prima facia case of a hostile work environment.
The Huttner and Hoyt cases illustrate two opposite ends of the spectrum regarding a swearing and "vulgar" workplace environment. Both case studies involved a significant amount of "soul searching" by employer management and the ultimate termination of one of the involved employees, but despite this, only in the Hoyt case did the Court find a hostile work environment. While one Court found the conduct and language to be so inappropriate and unprofessional as to be actionable, the other Court found the conduct to be inappropriate and unprofessional, but not actionable.