Cursing in the Workplace: Is it Legal?

I’m not a fan of cursing in the workplace. I think words matter, and the focus and intention of your words matter more.

You may wonder if foul language in the workplace is legal. Although many people may be thoroughly upset with the use of profanity and rude behavior in the workplace, there are no employment laws that require people to be respectful and polite to each other. The law governs what constitutes illegal activity or behavior; it does not dictate what is appropriate or professional in the workplace.1

Believe it or not, in certain situations and industries, some view cursing as a positive thing. These individuals believe that cursing by supervisors or employees shows that they are passionate about their work or that the use of foul language adds needed emphasis and motivation to others. In other words, others may be told to learn to deal with a person as having a “potty mouth” around everyone.

Should we conclude that there is nothing wrong with cursing? If it is viewed that the cursing is specifically directed toward an individual or group of individuals by virtue of their gender, age, race, national origin, religion, disability status or veteran status, it could be perceived as discrimination or harassment and represent the start of an illegal hostile work environment. Therefore, it’s a definite problem if a clear connection can be made between hostile language and the perceived motives of a harasser against a category of person(s) that is protected by law.1

I think it’s noteworthy to mention that recently the state of Massachusetts legislators considered a bill that would criminalize certain uses of the “b-word” — making it punishable by up to six months in jail or a fine up to $200. The bill, introduced a month ago by state Democratic representative Dan Hunt, states that “a person who uses the word ‘b*tch’ directed at another person to accost, annoy, degrade or demean the other person shall be considered to be a disorderly person” and would be guilty of a criminal offense punishable by “a fine of not more than either $150 or $200, or jail time of up to six months.” The offense could be reported not only by the person being called a b*tch but also by a third-party witness.2

The use of profanity in everyday conversation has become pervasive, especially with Gen Xers and Millennials. When profanity is used outside of the workplace as part of social interaction, as distasteful as it may be, it has no legal significance. It can be a totally different issue when used in the workplace. One way to combat this potential problem is by starting a “swear jar.” All kidding aside, below are some best practices you may want to consider.

Profanity Best Practices: Action Employers Should Consider

The issue of profanity in the workplace can seem like a no-win proposition for employers; therefore, to some, ignoring it may sometimes appear to be the easiest approach. However, ignoring profanity can leave an organization vulnerable to complaints, lawsuits, and, perhaps worst of all, permitting a workplace to become hostile to customers and/or employees. Obviously, a proactive approach is a better course both legally and operationally. It should include the following: Consider your industry, employees, and culture. These are all critical considerations in dealing with such a subjective issue. There are no hard and fast rules, apart from banning the use of racial, ethnic, gender-based, disability-based and religious slurs. These have almost always led to complaints and, often, legal action. Otherwise, employers should consider how their organization operates on a day-to-day basis, what is considered normal and acceptable for their industry, how much contact employees have with customers, and similar practical factors. But that is not to say that tolerance of profanity should be the operating rule in any workplace.

Because this is such a subjective area of employee relations, employers should develop policies to quickly escalate issues up the management chain whenever issues including workplace profanity arise.3

Put your Policies in Writing

Workplace profanity policies should be as specific as possible and clearly stated in the employee handbook. The policies should be addressed in employee orientation as well as in periodic training. They should also set forth the disciplinary measures for violation of the rules.

Today, employees who are called to account for violating company profanity rules sometimes try to claim First Amendment protections of freedom of speech. However, the First Amendment does not apply in the workplaces of private employers. Profanity thus has no constitutional protection in the private workplace.

Train Managers and Supervisors

Your managers and supervisors should receive training about how to respond to profanity in the workplace. An isolated outburst should be distinguished from a pattern or routine use of profanity. In addition to learning how to properly respond to employee concerns, they should clearly understand that the use of profane language by them in front of employees is totally unacceptable. They must lead by example.

My advice is to use the kind of language at work that shows your professionalism and that employees and co-workers are appreciated and valued. Avoid the kind of language that would have prompted your mother to wash your mouth out with soap.

ClearPath can help you design a solution pertaining to your contingent workers. We can help relieve this burden by outsourcing your back-office Human Resources and Payroll functions to our Employer of Record service. Contact us to learn more about how our expert personalized service can let you get back to focusing on your business goals. Work with a leader in the industry for outsourced Human Resources and Payroll functions associated with W-2 and 1099 contingent workers. Let ClearPath be the path to your peace of mind. For other questions about assessing your workforce or conducting a review of your current hiring processes, the ClearPath team can assist you.

This blog article is for general information purposes only and does not provide an in-depth review of employment laws. It should not be solely relied upon or substituted for legal or professional advice. The use of the information provided is at your own risk.

Sources:

1 https://www.landrumhr.com/blog/june-2016/cursing-in-the-workplace-is-it-legal

2 https://www.nationalreview.com/2019/10/massachusetts-bill-would-criminalize-use-of-word-bitch/

3 https://www.cpapracticeadvisor.com/firm-management/article/12423959/profanity-in-the-workplace-what-are-employer-responsibilites

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