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Employees mocked at work may have the last laugh in court

March 17th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

You may be amused when the office comedian imitates a coworker’s accent or other unusual trait, but when it comes to mockery, the result may be no laughing matter. For example, several recent cases demonstrate that mocking an employee’s accent or physical limitation can support discrimination and harassment claims under Title VII, the ADA, and other federal laws. While courts routinely point out that Title VII is not a general civility code, it seems that personal mockery is often considered worse than incivility.

Title VII cases. In Bryant v. Wilkes-Barre Hospital, a federal court in Pennsylvania refused to dismiss an African-American employee’s Title VII and state law racial harassment claims, finding them sufficiently supported by allegations that coworkers frequently mocked her pronunciation of some words—such as “aks” instead of “ask” and “birfday” instead of “birthday”—and that one asked her if she ate chicken and watermelon. And in Rojas v. Hospital Español de Auxilio Mutuo de Puerto Rico, Inc., a Title VII national origin-based hostile work environment claim survived summary judgment based largely on evidence that an employee’s Dominican accent was often mocked by her Puerto Rican coworkers.

In both of these cases, the employees complained but the employers took no remedial action, providing a basis for employer liability. Also, both courts found that the alleged harassment was so severe that the employees could advance their claims of constructive discharge.

ADA and FMLA cases. In a case from Connecticut, human resources employees allegedly mocked an employee’s disability after she underwent finger surgery and back surgery that required placing six screws and two rods in her back. Though her doctors had released her to return to work from medical leave, the employer delayed her return and, according to the employee, an HR rep explained: “The reason why I didn’t think you should come back was because I was greatly afraid that . . . you would be looking like this.” The HR rep then stood and “grabbed the wall like an invalid” and “mimicked a person grabbing on for dear life to the walls.” The employee found this so upsetting that she asserted she will “never forget” the incident as long as she lives. The employer may not forget it either, considering that her ADA discrimination and FMLA retaliation claims will go to trial (Lewis v. Boehringer Ingelheim Pharmaceuticals, Inc.).

An ADA claim was also at issue in a case recently settled by the EEOC on behalf of a cleaning service employee who walked with an abnormal gait due to a stroke. According to the agency’s complaint, one of the company’s officers harassed her by calling her a “cripple” and mockingly imitated how she walked. A federal judge in Illinois entered a consent decree requiring that the employer pay her $15,000, train its managers and other employees on the ADA, and meet recordkeeping and reporting requirements for the duration of the three-year decree.

Lessons learned. Though the takeaways from these cases seem like common sense, mockery appears often enough in employment litigation that employers should consider including the following points in training managers and employees:

  • The workplace is not a stage and you’re not employing stand-up comics. Mockery is not funny unless you are a late-night talk show host impersonating a politician. Mockery is personal, it is mean, and it doesn’t go over well in court.
  • Nip it in the bud. Even if one employee mocks another’s accent in a poor (though clear) attempt at humor rather than harassment, it is best to stop it the first time it happens rather than chalking it up to a single instance of insensitivity. Not only could the employee repeat the error, but coworkers who overhear may think it is okay to join in. If that happens, employers may really have a problem because, even if the mockery isn’t severe in one instance, it can become bad enough to support a hostile work environment claim, if repeated. And obviously, if an employee complains, take swift action to stop the mockery, as indicated by both the Bryant and Rojas cases.
  • Actions speak louder than words. If commenting on someone’s disability in the context of taking an adverse employment action can support a discrimination claim, what do you think mimicking the disability will do in the same context? Indeed, it could be that those engaged in mockery exaggerate the effect of the disability (or other characteristic) for comedic or dramatic effect (as could have been the case in Lewis), thereby making things unforgettable, and perhaps unforgiveable in the eyes of a jury. At the very least, it would likely be considered evidence of discriminatory intent.

In addition, the usual advice applies: maintain and enforce policies prohibiting discrimination, harassment, and retaliation; adequately train all personnel on those policies; and fully investigate any complaints of violations.