Workplace Jokes: Why Employers Never Get Them And Litigants Get The Last Laugh

I am convinced that the vast majority of employers sincerely want to protect their employees.

For proof, consider that charges of discrimination are dropping, especially in regard to traditional forms of discrimination such as race and color discrimination.

In 2008, there were 95,402 charges filed with the Equal Employment Opportunity Commission (EEOC). Last year, there were 89,385 charges filed, a drop of six percent. 

Now consider that there are 122.52 million full-time employees in the United States.http://www.statista.com/statistics/192361/unadjusted-monthly-number-of-full-time-employees-in-the-us/. So, as a percentage of full-time employees, the likelihood of an employer receiving an EEOC charge is .072 percent. If you add part-time employees to the percentage, the risk drops even further.

Now consider the continual drop in race charges. In 2012, there were 33,512 EEOC charges based on race. In 2015, the number had dropped seven percent to 31,027. However, as a total of all charges, race claims comprise only 34 percent and are no longer the number one charge brought by employees. 

Yet, just when you believe all is well, you come across something that makes you believe that more work is needed regarding workplace boundaries.

An ex-employee is suing his national grocer employer because of a party gift. The gift giver was a female coworker.

According to the allegations, the gift was given at a mandatory holiday "gift exchange" party. The allegation is that all the employees wanted the plaintiff to open his gift, giving the impression that they knew what the gift was. When the plaintiff opened the gift, he discovered it was in the shape of the male sex organ.

The recipient states he was shocked and embarrassed, especially after the female employee who gave the gift continued to taunt him about the gift. The recipient argued that if the roles were reversed and he had given the gift to a woman, he would have been fired. He complained to management, but was terminated because of false allegations by the gift giver, according to the gift recipient/complainant.  

Of course, now you have the lawsuit for wrongful termination, sexual harassment, retaliation and negligence. "Man Sues Trader Joe's, Alleging He was Fired for Complaining About Receiving Sex Toy Gift at Holiday Party,"patch.com (Apr. 20, 2016).

I am certain that the management in attendance at the gift exchange would claim that they did not know what the gift would be or that they thought the gift was harmless...a joke. They may even argue that the recipient laughed and was known for his own "off-color" acts or statements. None of those excuses bear significant weight in this matter.

The fact is that workplace pranks and jokes are not always funny to everyone, especially if at someone else's expense or if sexual in nature, and they always fall the hardest on the targets and employers. Undoubtedly, C-suite and human resources of this employer are now reconsidering "gift exchange" parties. 

For the rest of us, the gag gift is a bad boundary violation even if the plaintiff is blowing the impact of the joke out of proportion.

Employers know that work is stressful, so light-hearted moments are welcomed if not encouraged. However, there is a line and when the line is crossed, it is the employer that usually pays the monetary cost. 

For that reason, employers must enforce boundaries. Sexual harassment policies are not enough.

The employee who received the gift is unlikely to proceed with the sexual harassment suit. He would have to show the gift was not only unwelcome, but that its impact on him was so severe that it created a hostile working environment because of his gender - a difficult burden for even the most gifted attorney.

The allegation that will stick and go to a jury is the retaliation charge - that he was fired for complaining and/or for making a charge that there was a double standard. That charge will play well in front of a jury.

All these legal questions would be unnecessary if the joke was never played in the first place. Here are some ideas when setting boundaries in the workplace:

  • Sexual harassment and EEO policies help set some boundaries, but more is needed.
  • A general workplace wrongdoing policy is important to protect employees from jokes and pranks that can hurt other employees.
  • Wrongdoing policies should not try to list all type of wrongdoing that could occur. The list is too long and when you inevitably leave something out it creates confusion and potential liability.
  • Workplace boundaries go beyond acts and words. Online boundaries should also be addressed.
  • Take boundary complaints seriously.
  • Don't judge. Boundary complaints are personal and differ from person to person.

By Jack McCalmon via The McCalmon Group, Inc.