Alesia J. Kantor, Kenneth W. Di Gia, Michael A. Kalish, Traycee E. Klein, Peter M. Panken, and A. Jonathan Trafimow, Editors
Epstein Becker & Green, P.C.

Vol. 14, No. 9
September 2007

WORKPLACE CULTURE

But he started it! Inappropriate banter has no place in the workplace

by Lisa J. Teich

John Doe has been employed in your company's advertising department for several years. Since he was hired, he has had a collegial working relationship with the department's other employees, all of whom engage in what could be described as sophomoric banter.

For example, Doe, a man of Irish descent, frequently refers to his supervisor, Mike Smith, as "grandpa," "golden-ager," and "crypt-keeper," while Smith refers to Doe as "leprechaun," "Regis Philbin," and "Guinness." Since it seems to be nothing more than harmless banter among colleagues, you think nothing of the behavior — especially since no one from the advertising department has complained to HR.

At some point, however, Smith terminates Doe after he finds out that Doe "borrowed" a company laptop without permission. Doe informs Smith that he borrowed the laptop so he could file a lawsuit against the company and Smith for national-origin harassment because Smith has been referring to him as "leprechaun." Since Doe was fired for a seemingly good reason and Smith's comments were merely collegial teasing between friends that Doe himself had participated in, you have nothing to worry about, right? Not necessarily.

Workplace banter typically doesn't rise to the level of unlawful harassment

Although irreverent banter can be highly offensive and isn't appropriate conduct for the workplace, courts typically deem workplace banter alone — especially when the employee participated — insufficient to sustain a harassment claim. The rationalization is that Title VII of the Civil Rights Act of 1964 isn't a general civility code designed to purge the workplace of idle banter between friends and colleagues.

But collegial workplace banter isn't so harmless when it touches on matters related to protected characteristics, it is severe and pervasive, or its participants include supervisors who play a substantial role in an adverse employment decision involving one of their subordinates.

Supervisor's participation in banter can indicate a discriminatory motive

New York courts have held that repeated stereotypical comments made by a supervisor in the context of sophomoric workplace banter can be direct evidence of discriminatory intent when the supervisor plays a substantial role in the decision to promote, demote, or terminate an employee. In July, the U.S. District Court for the Eastern District of New York denied a company's request to dismiss an employee's national-origin discrimination claims. The court held that an office practice of collegial banter and offensive ethnic joking — in which the employee participated — didn't bar his claims when the supervisors who participated in the decision to terminate him not only participated in the derogatory name-calling but also ignored his repeated requests for it to stop.

In that case, the employee, an East-Asian loan officer, claimed that he was terminated because of his national origin. He argued that his supervisors, one of whom was responsible for bringing him into the company, repeatedly called him names such as "Dot-Head," "Bin Laden," "Dot-boy," and "Snake Charmer." Although he claims he complained to his supervisors about the derogatory name- calling, the offensive comments allegedly continued. In fact, he claimed that not even the company's vice president, who overheard one such comment and demanded that the behavior stop, could put an end to the inappropriate and offensive conduct. He alleged that the perpetual name-calling eventually began to interfere with his job performance, so he began looking for a new job.

According to the employee, his supervisors confronted him about his job search and then fired him after he told them he wanted to leave the company because of the harassment he had endured. The company claimed it fired him because it believed that he had already accepted a job with a competitor and was attempting to lure away business.

In response to the employee's discrimination claim, the company argued that the name-calling was nothing more than sophomoric banter in the context of good- humored exchanges between and among friends. Although the employee admitted to calling his coworkers ethnically derogatory names such as "Polack" and "guinea," the court rejected the company's assertion that, at the very worst, the employee and his coworkers had engaged in "equal opportunity derogatory references." The court noted the distinction between an office and a locker room to emphasize the point that regardless of the context, ethnic slurs have no place in the workplace. Chetal v. BLS Funding Corp.

What does this mean for employers, and how can they protect themselves?

This decision should remind employers that good-humored exchanges and comments made by supervisors in the context of immature workplace banter could be used by an employee to establish a discrimination claim. Although it's difficult to maintain a collegial and appropriate working environment, especially regarding what supervisors and employees say to each other, you can take steps to diminish the likelihood that conflicts stemming from inappropriate banter will arise and/or result in litigation.

While many employers train their supervisors about harassment, retaliation, and other inappropriate workplace behavior, you also should expressly inform your supervisors that even reciprocal banter between coworkers with whom they socialize may be sufficient evidence to support a discrimination claim. You also should make clear to your supervisors that what may be funny to some may be offensive to others and require them to conduct themselves accordingly.

Although training may establish that an employer instructed its supervisors and employees regarding appropriate workplace behavior, if an employee's complaints go uninvestigated, undisciplined, and undocumented, it will be more difficult for an employer to demonstrate both that it took the employee's complaints seriously and that it took appropriate corrective measures to reduce the inappropriate banter.

Accordingly, if you overhear inappropriate workplace banter or receive an employee complaint regarding derogatory comments in the workplace, it's important that you (1) investigate the employee's complaint, (2) speak to or, if warranted, discipline or terminate the individual who made the inappropriate comment, and (3) document both the inappropriate comment and the remedial measures taken against the offending employee. By following those steps, you will place yourself in a position to more effectively defend against a discrimination claim based on collegial workplace banter.

It's also recommended that you follow up with the complaining employee — both during and after the investigation. Too often, employers conduct a good investigation but don't tell the complaining employee about it. That can lead the employee to believe his complaint wasn't taken seriously and hinder him from making complaints later. Following up with a complaining employee could affect not only whether he files a lawsuit but also, if a lawsuit is filed, whether it's dismissed.

Copyright 2007 M. Lee Smith Publishers LLC

NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.