Workplace Policies Don't Have to Be Too 'Politically Correct'

Employment law does not protect the hypersensitive employee, but a handbook policy might if it's worded too broadly.

Write anti-harassment policies carefully so employees aren't under the misimpression that they are guaranteed not to be offended in the workplace, recommended James McDonald Jr., SHRM-SCP, an attorney with Fisher Phillips in Irvine, Calif., in a Tuesday mega session at the SHRM 2018 Annual Conference & Exposition.

Many employees seem to be walking on eggshells these days, said Tony Carozza, SHRM-SCP, human resources director with Peoples Services Inc. in Canton, Ohio, and a session attendee at McDonald's session, "Political Correctness at Work: How Much Is Too Much?" Carozza was looking for an approach that takes the edge off workplace discussions.

Much Case Law Protects Employers

The courts are often on the employer's side when it comes to potentially offensive events in the workplace, McDonald said:

• The mere utterance of an epithet that offends an employee is not illegal, the Supreme Court has noted in Vinson v. Meritor Savings Bank (1986).
  
• Harassment must be severe or pervasive to be unlawful.
  
• To shield employers from having to accommodate the idiosyncratic concerns of individual employees, only conduct that a reasonable person would find offensive is unlawful, the 9th U.S. Circuit Court of Appeals ruled in Ellison v. Brady (1991).
  
• In Faragher v. City of Boca Raton (1998), the Supreme Court stated that Title VII of the Civil Rights Act is not a general civility code. Ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes and occasional teasing, aren't covered by the law when it's properly applied, according to the high court.
  
• And in EEOC v. Sunbelt Rentals Inc. (2008), the 4th Circuit observed, "Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard. Some rolling with the punches is a fact of workplace life."
  

Overly Broad Policies

Despite these court determinations, McDonald cautioned that policies that are too protective:

• Are likely to generate employee complaints about minor issues.
  
• Risk inconsistent enforcement.
  
• Will force employers to deal with competing sensitivities.
  

He cautioned against policies that state:

• "The company prohibits all forms of harassment, including harassment based on sex, race, age, etc."
  
• "Our policy is a zero-tolerance policy. All harassment is prohibited, whether or not it might be found illegal in a court of law."
  

He also advised against including the phrase "hostile working environment" in anti-harassment policies and said that many employees mistakenly think this phrase includes:

• An unpleasant boss.
  
• Rude or gossipy co-workers.
  
• Difficult clients.
  
• Pressure to meet quotas or produce results.
  
• Being unfairly disciplined.
  
• Stressful working conditions.
  

A job without stress is called a hobby, he joked.

McDonald also said that employers should not prohibit conduct "that others might find offensive" because individual employees will find a host of behaviors objectionable.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

What Policies Should Include

He said that policies should clarify that out-of-bounds conduct includes:

• Insults or slurs base on race, sex, ethnicity, etc.
  
• Use of profanity in addressing subordinates.
  
• Mocking dress or hairstyle.
  
• Making fun of cultural behavior or customs.
  
• Mocking or imitating speech or dialect.
  
• Ridiculing religious practices.
  
• Criticizing others' moral or lifestyle choices.
  

McDonald discouraged employers from stating policies that prohibit the rank and file from having political discussions, saying such policies are too difficult to police. However, managers should limit their political commentary around subordinates, he noted, saying managers should be trained not to do this, as it may result in a bias claim.