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Sticks and stones: Watch what your managers say at work

February 23rd, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

People say the darnedest things at work. In the last few months, courts have addressed some amazing comments by managers and supervisors that did not result in any liability. While these may have been employer “victories” in the sense that there was no finding of liability, in every case they did result in litigation. Employers relying for protection on the general proposition that the law has not imposed a general civility code on employer-employee relations should make note of the fact that such comments might not result in a damages award, but they do seem to drag employers regularly into court.

And, of course, some comments do cross the line and result in employer liability – either on their own or, more frequently, as evidence supporting discriminatory intent.

Comments alone not enough for employer liability

Pain in the ass. For example, in a negligence and defamation action against the employer, a director of sales described his sales rep (later promoted to national sales manager) as a “f***king a**hole,” “pain in the ass,” and “piece of s***.” None of the sales rep’s claims were actionable, the court found: the statements were not defamatory (they clearly were opinion) and he couldn’t show negligence because the director’s allegedly tortious conduct wasn’t foreseeable by the employer. Although the rep alleged that the company had actual knowledge of the sales’ director’s incompetence as a supervisor, incompetence did not rise to the level of “criminal or tortious propensities,” concluded the Northern District of Ohio (Baum v Intertek Testing Services).

“Hot mama.” In the more familiar sexual harassment context, comments by a supervisor who called a new sales associate a “hot mama” during her first week at work, told her he was glad to have somebody to look at, commented on her clothes and how she walked, shared sexually tinged jokes, discussed his own marital unhappiness, and said “somebody’s going to think that we’re doing something nasty in here,” were neither severe nor pervasive enough to create employer liability. The Middle District of Georgia found the allegations about off-color jokes, awkward compliments, and inappropriate comments about her appearance and his marital problems were simply “ordinary tribulations of the workplace” that were not prohibited by Title VII. And a warning from her supervisor to keep quiet about a telephone call from his wife – calling her a whore and telling her to watch out – did not relate to sex or gender (Odom v Fred’s Stores of Tennessee).

Bipolar people are “highly deficient, flighty, dishonest and untrustworthy.” Because it was just a single incident in which an Ann Taylor store manager privately berated a sales lead for 45 minutes – she allegedly told the employee she was unqualified for her job because of her bipolar condition, which made her “highly deficient, flighty, dishonest, and untrustworthy” – this was not sufficient to establish a constructive discharge, even though the store manager gave the employee the choice of accepting a demotion or facing a 95 percent chance of being fired. She also purportedly told the employee she would have never hired her if she had known about her bipolar disorder (which she allegedly only learned about during the meeting).

Noting that employees are not guaranteed “a working environment free of stress,” the Eleventh Circuit found, in an unpublished opinion, that this wasn’t the kind of pervasive conduct necessary to establish a constructive discharge. It also cited the fact that the employee herself waited a few days before resigning as evidence that a reasonable person would not have felt compelled to resign under the circumstances, perhaps overlooking the evidence that the employee did, in fact, resign (Menzie v Ann Taylor Retail, Inc.).

“Your big fat ass needs to concentrate on losing weight.” Here, the timing and context of a supervisor’s comment that an employee’s “big fat ass needs to concentrate on losing weight” meant that the supervisor’s comment did not show discrimination or retaliation. Rather, the employee was terminated for seeking overtime pay for hours she did not work. The specific “big fat ass” remark allegedly was made three months before the overtime investigation and five months before the employee’s termination; this timing did not suggest a causal link. While the evidence might show some animus towards overweight individuals, the Northern District of Illinois noted, it did not show that the animus played any role in the employee’s termination. The court said accordingly that it did not need to decide whether the employee had presented enough evidence to show that her obesity was a disabling impairment (Luster-Malone v Cook County).

Comments alone are enough

“Constant lewd comments.” Sometimes comments alone are enough to lead to liability, however, though it may depend on where you work. A tax manager for Deloitte for many years alleged that her supervisor had “constantly” made lewd sexual jokes, remarks, and gestures, though he never physically grabbed her or propositioned her for sex. She eventually filed a sexual harassment grievance; she testified she “felt intimidated, humiliated, and embarrassed,” but the only evidence of an effect on her was that the jokes bothered her and “made her blush.” The federal district court in Puerto Rico would not automatically dismiss her hostile work environment claim simply because she could get work done despite her supervisor’s actions. The frequent lewd sexual jokes and gestures “easily” qualified as egregious in the professional environment. Further, although the behavior did not appear to include physical grabbing or sexual propositions, there was a “flu shot incident” at work where her supervisor supposedly directed the nurse to give the shot in her buttocks; then he imitated physical sexual conduct. Though not physically threatening, it “easily” rose to a physically humiliating level. (Miranda v Deloitte LLP).

“Chemo brain.” A supervisor’s comments to a 62-year-old employee who had just returned from leave to receive treatment for breast cancer, calling her “chemo brain,” badgering her about retirement, telling her he was going to make her the “fall guy” for a bad audit report, and eventually suspending and firing her after she complained of discrimination at a board meeting, factored into the defeat of her employer’s motion for summary judgment on discrimination and retaliation claims under the ADA, ADEA, and state law, the federal district court in Connecticut found (Hopkins v New England Health Care Employees Welfare Fund).

Using n-word “out of love.” Also, attempting to explain away inappropriate comments made by company execs isn’t necessarily a good idea. In this case, the employee had strong evidence that the company president berated her and said she and another woman “acted like ni**ers all the time.” He also repeatedly described the employee using the n-word. When she objected, he told her he was not using the term in a “derogatory” manner because “sometimes it’s good to know when to act like a ni**er.” He testified at trial that he used the term “out of love” to motivate her to improve. He also acknowledged that he “may have” told the employee that “black women get in the way of themselves” and that he had a “tendency” as a “Puerto Rican male” to feel that the man “rules in his house,” that a man’s “word is law,” and women “are too emotional.” As an affirmative defense, the defendants tried to characterize the president’s behavior as nothing more than petty slights or trivial inconveniences. Disagreeing, the Southern District of New York noted that “even a single comment may be actionable in the proper context.” It could conceive of no circumstances when calling a subordinate that name would be acceptable (Johnson v STRIVE East Harlem Employment Group).

Comments “plus” create liability

“Retard” plus a kick in the pants. Although foul language alone doesn’t often tip the scales in favor of employer liability, sometimes all it takes is a little shove to push it over the line. Take, for example, a case where an employee with Asperger’s syndrome and OCD had evidence that his store manager called him names like retard — and kicked him in the butt, and deliberately “contaminated” a game the germ-phobic employee intended to purchase. This was enough to get to a jury on his disability-based hostile work environment claim. The store manager explained that he kicked the employee to get his attention — not to physically harm him. This didn’t help the employer’s defense all that much. The employee was not harmed physically, but he testified that he was embarrassed because the incident took place in front of customers. This kind of behavior was not merely rude or offensive, the federal district court in New Jersey found, but appeared to be deliberately intended to harass the employee because of his disability. Indeed, the evidence painted “a picture of widespread insensitivity towards his disability by managers” since the inception of his employment (Witkowski v GameStop, Inc.)

“Gay porn star,” “faggot,” “queer” – and more. In a case under state law, substantial evidence supported a jury’s finding that an oil rig floor hand was called “queer” and “faggot,” and subjected to other harassment “because of” his sex or perceived sexual orientation. The heterosexual employee was called “queer,” “fagot,” “homo,” and “gay porn star” several times a day by one of his two supervisors. His supervisor posted a picture of the employee on the restroom wall: it “had a big target” around his mouth and stated “Give me the money shot.” His second supervisor also sexually harassed the employee, at one point urinating on him as he was standing below the supervisor’s elevated floor. Appealing the jury verdict in the employee’s favor, the employer argued there was not enough evidence to establish the employee was harassed “because of” his sex and/or perceived sexual orientation. Hardly, said the California state appeals court, suggesting that “any reasonable heterosexual male” would have recognized that his coworkers attacked his heterosexual identity through their comments: “sex was used as a weapon to create a hostile work environment” (Taylor v Nabors Drilling USA, LP).

“I know you like it rough” – and choking her to prove it. Evidence that for over six years an employee for a candy company was subjected to a barrage of sexually charged comments, propositions, innuendos, and gestures by the supervisor and two male coworkers that affected her detrimentally, including being choked by a male supervisor until she urinated in her pants, was enough to get to a jury on her hostile work environment claims. The employee described her work environment, which she had “absolutely loved” for ten years, as becoming a “living hell” because of the sexualized behavior of her male supervisor and two of his male subordinates.

Her supervisor told her “I’ll have you cum before you get your pants off” when he propositioned her to meet him after work. He choked her one day, telling her “I know you like it rough,” which caused her to urinate in her pants. She complained repeatedly, including filing complaints with her supervisors and the company’s CEO, as well as verbal complaints to the HR manager but no action was taken. After she complained to the CEO, she was called into her supervisor’s office, where another supervisor screamed that she was “f**king nuts” and that must be “having hot flashes.” In addition to getting sick every morning before work and being treated for anxiety and depression, the employee became suicidal before she finally resigned – and sued (Standen v Gertrude Hawk Chocolates, Inc).

Teach managers acceptable workplace language

Managerial comments like these illustrate just how porous the boundary can be between acceptable and unacceptable workplace language. Plus, some of the more egregious comments are simply breathtaking; the fact supervisors made them strongly suggests that employers are not doing a very good job of defining acceptable language in the workplace. Consider the following issues to communicate with your management team:

  • What is your corporate culture: Where do you as an organization want to draw the acceptable language line? One way to get senior execs involved is to ask them to consider how such comments would reflect on their brand if they were attributed to company management via social media.
  • In training managers, deal directly with how you expect managers to express themselves to employees. If name-calling, cursing, and sexual comments are not acceptable management communication styles, say so.
  • Remind managers that it also matters who else is present when comments are made. Were the comments made just to the employee? In front of coworkers? In front of customers? Again, be specific in your communication guidelines.