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A CEO, an HR manager and an attorney walk into a bar ....

If any joke in the workplace makes you think, "lawsuit!", you aren't alone. The laws requiring you to protect employees from illegal discrimination are deadly serious. They also are vague.

The federal Civil Rights Act, which applies to employers with 15 or more workers, prohibits job bias based on race, color, religion, sex or national origin. But state and local statutes often go further, meaning that comments or actions that are OK in one place are illegal somewhere else.

Unfortunately, the courts have yetto provide concrete guidance on what talk or actions are "severe and pervasive enough" to create a hostile work environment.

Hostile or hooey?

Consider these examples from Eugene Volokh, a UCLA law professor who has written on harassment law:

 

  • A New York judge said gender-based job titles such as "foreman" and "draftsman" are discriminatory and implied that an employer who continued to allow employees to use such terms could be liable.
  • The Montana Human Rights Commission identified a hostile environment due to off-color jokes and cartoons, even though none of the jokes were told to the woman who complained and the jokes weren't sexist or misogynist.

     

     

Volokh also cites broad orders from other courts. One prohibited any racial, ethnic or religious epithets or even jokes. (For more information from Volokh, visit his Web site, www.law. ucla.edu/faculty/volokh/harass.)

Case study: Bias versus speech

The issue of the First Amendment clashing with business efforts to stop discrimination was highlighted last year in Avis Rent A Car Systems Inc. v. Aguilar. (120 S.Ct. 2029)

After a jury awarded damages under California law to Latino workers who were harassed, the court also decided to bar a supervisor from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees." California's supreme court upheld the order in a splintered decision, and the U.S. Supreme Court wouldn't review it.

In an unusual move, Justice Clarence Thomas wrote a dissent. He said placing prior restrictions on workers' speech may be unnecessary since there is a less severe remedy in allowing damages for future violations.

Protect against harassment first

With that lack of direction, most employment law experts advise employers to lean toward protecting their workers from possible harassment, rather than attempting to safeguard speech or actions that may be offensive to some.

In most cases, private employers are free to restrict their workers' speech and even fire them for talk that normally would be protected from government censorship.

There are limits, however. For example, Title VII requires not only that you protect employees from harassment based on their beliefs but also that you make reasonable accommodations of employees' religious needs.

Therefore, you need to provide a place for one worker whose religion requires him to pray during the workday but also stop a worker whose proselytizing is harassing co-workers.

Also, blanket restrictions on politicking could run afoul of public policy concerns and employees' rights to unionize.

Best bet: Have policies that explain to your workers what actions are prohibited, and provide specific examples. It's also critical to have an effective policy on how to address complaints. While you may not be able to prevent all actions that can add up to a hostile work environment, prompt action will cut down your liability.

 

Sample solicitation policy

To avoid interruption of work and protect you from unnecessary annoyance, solicitation of or by employees is prohibited in work areas during work time. Work time does not include lunch or approved breaks. Work areas, for the purposes of solicitation, do not include lunchrooms, lounges or parking lots. Distribution of literature to or by employees is prohibited in work areas at all times.

Source: National Institute of Business Management, The Book of Company Policies.

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