Pranks Often Cross the Line

Allen Smith, J.D. By Allen Smith, J.D. July 16, 2021
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a worker pointing at a Post-It on the back of another  worker that says, "Kick me!"

​People pull pranks at work for any number of different reasons—boredom, an attempt to build esprit de corps or a desire be the office clown, to name a few—but HR should make sure practical jokes don't go too far. All too often, they do.

"Pranks that are not at all related to a protected class are unlikely to be considered unlawful harassment," said LaKeisha Caton, an attorney with Pryor Cashman in New York City. "However, pranks that single out employees based on a protected category or a characteristic that relates to a protected category, like hair texture, are likely to be considered unlawful harassment and have no place at work."

She said examples of office pranks that might be considered harassment include:

  • Buying a co-worker lunch with pork when the employee requested chicken, knowing that the employee's religion restricts them from eating pork.
  • Giving an employee a walker on the colleague's 60th birthday.
  • Leaving a milk carton that reads, "got milk?" on a nursing mother's desk.

"These pranks are likely deemed unlawful harassment because they center around an employee's protected class or a trait that relates to a protected class," Caton said. In these examples, the protected characteristics or traits would be religion; age; and lactation, which is a sex-based trait.

Pranks may result in legal and reputational risks if carried too far, said Philippe Weiss, president of Seyfarth at Work in Chicago.

He cited two examples that occurred during the height of the pandemic:

  • A "group ghosting" prank, where staff members intentionally ignored e-mails and communications from particular team members—all of whom were age 55 and older.
  • A "fake felony" prank, where Zoom participants at a company called 911 after believing they saw a colleague getting mugged and repeatedly stabbed by intruders. Actually, the co-worker had staged the prank with his three cousins and admitted that the screams and use of fake blood pouches were too realistic.

Pranks that don't refer to a protected characteristic can still be unlawful even if they don't constitute harassment, noted Porpoise Evans and Michael Kantor, attorneys with Weiss Serota Helfman Cole & Bierman in Miami and Fort Lauderdale, Fla., respectively, in an e-mail. For example, employers can be liable for pranks that cause injuries.  

Lower-Risk Pranks

It's probably safest to steer clear of pranks in the workplace, according to Justin Gunnell, an attorney with Sher Tremonte in New York City. But if practical jokes are played, they should:

  • Not destroy or damage anyone's property.
  • Not single anyone out or publicly embarrass anyone.
  • Not carry any risk of harm or injury.
  • Not mock or poke fun at anyone's ethnicity, race, religion, gender, sexual orientation, caregiver or disability status, age, or any other protected status.

Weiss gave a few examples of lower-risk pranks that have occurred at actual sites. In one, a company started an in-house training session with a surprise—when in actuality it was a scripted role play. Someone barged in at the start of the session and blurted out, "Big issue with the flavoring at our new candy plant: All the product coming off the line tastes like garlic." Then, after revealing the prank, the same scenario was used as the basis to discuss relevant training topics, such as quality control.

"The truth is many people spend more time at work than they do with friends and family these days, so it is natural for them to try and have a little fun in the workplace," said Vincent White, a plaintiffs' attorney with White, Hilferty and Albanese in New York City. "A lighthearted prank in the workplace is fine, well and good" so long as employees remain productive and aren't harming the well-being of co-workers, he said.

"If the prank crosses the line but does not cause much harm from the perspective of the employer and any employee impacted by the prank, the employer may consider a written reprimand or warning," Caton said.

Unlawful Pranks

"But in reality, many workers cross the line and imperil themselves and even their employer without ever having intended to," White said.

"Anything sexualized in any way, any form of nonconsensual touching, anything that could be in any way construed as discriminatory, all of these would immediately be at risk of being viewed as breaches of federal and potentially local laws," he added.

Amory McAndrew, an attorney with Hoguet Newman Regal & Kenney in New York City, noted that New York state's model anti-harassment policy specifically addresses pranks in its list of what can constitute sexual harassment. The policy states, "A sexually harassing hostile work environment consists of words, signs, jokes, pranks, intimidation or physical violence which are of a sexual nature, or which are directed at an individual because of that individual's sex."

"There are some types of pranks and jokes for which there should be a zero-tolerance policy," McAndrew said, such as if an employee harasses a colleague based on that worker's race or gender.

Tips for Managers and HR

Pranks intending to connect workers with their colleagues also can go awry.

Weiss suggested some managerial tips:

  • Don't laugh along with or minimize the impact of disruptive, demeaning or distracting pranks. Tacit approval provides a license for others to prank at will.
  • Be receptive and responsive to concerns. If a manager receives complaints from employees, take them all seriously, even if the manager found the prank relatively benign or amusing.
  • Consult with HR.

HR can tell employees that "while you may want to connect with co-workers, putting all their office supplies in Jell-O or gift-wrapping their desks is not the way to go," said September Rea, an attorney with Polsinelli in Los Angeles. "Instead, set up team-building events to foster connection."

 [Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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