James F. Kilcur, Editor
Saul Ewing LLP

Vol. 18, No. 5
February 2008

HARASSMENT

A not-so-funny verdict

James F. Kilcur

Sometimes an attempt at levity in the workplace is a great stress reliever. Other times, however, the joke is on the employer when an employee is offended. As this case shows, the workplace isn't always the best place to exhibit your comic genius.

Background

This case involves an age discrimination claim by an employee who said her supervisor had treated her badly based on her age. Among other things, the supervisor supposedly left several "ageist" documents on her desk at various times. One document was titled "Real Women Don't Have Hot Flashes, They Have Power Surges."

Another, titled "Retire Aged Personnel Early" (RAPE), was a humorous and fictional description of a company's early retirement plan. Before being RAPEd, employees could view their files under a phase of the operation called the "Survey of Capabilities of Retired Early Workers" (SCREW). So (you can see where this is going), affected employees could choose whether to be SCREWed before being RAPEd by the company.

The employee who filed suit found the anecdotes less than amusing and used them at trial ― which resulted in a six-figure jury verdict in her favor. She claimed the documents demonstrated that her supervisor, who also allegedly changed her work assignments and reduced her responsibilities, was trying to get rid of her because of her age.

The company argued without success that the incident was akin to the sort of jokes that are common in most workplaces. The jury was apparently not persuaded. When the verdict was appealed, the reviewing court also took a dim view of the company's defense, observing that harassment laws would be of little value to employees if employers could avoid liability by simply stating that the unlawful behavior was the result of "just joking around."

Bottom line

You can take the following steps to prevent a similar situation at your workplace:

• Make sure your harassment policy covers all types of conduct that might offend others based on protected status ― including jokes. Prohibit all inappropriate behavior, not just conduct that rises to the level of harassment.
• Teach your employees that offensive material has no place at work. The key is not whether the employee or management thinks the material is humorous ― many people may find it amusing ― but whether a coworker might find it offensive based on age, sex, race, or disability. Sharing material that is considered offensive by even one coworker should result in discipline.

Copyright 2008 M. Lee Smith Publishers LLC

PENNSYLVANIA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Pennsylvania employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Pennsylvania does not certify specialists in labor and employment law, and we do not claim certification in this area.