Will Don Imus’ last words launch a new revolution in what constitutes acceptable speech and conduct in the workplace?
Until Mr. Imus uttered that detestable phrase about the Rutgers women’s basketball team approximately two months ago, it is unlikely anyone would have expected those words to lead to his termination — the equivalent of worker capital punishment.
While Mr. Imus’ words were aired via a national media outlet and not in the relative privacy of his own workplace, the effect has been galvanizing nevertheless. Speech some may have wrongly viewed as acceptable now is justifiably not.
What almost immediately followed Mr. Imus’ firing was the suspension of Opie and Anthony from their XM Radio broadcast and the removal of HBO executive Chris Albrecht following allegations of an assault on his girlfriend. Signs of things to come.
The confirmation hearings of Justice Clarence Thomas thrust his workplace conversations with his colleagues into the limelight and created a national dialogue about hostile environment harassment. The Imus statement is having a similar although broader impact.
The Equal Employment Opportunity Commission has made it clear that harassment in the workplace is a form of discrimination that violates the law. Simply put, harassment of individuals based on their race, color, sex, religion, national origin, disability and/or age can be unlawful.
The Clarence Thomas hearing highlighted that harassment does not have to be physical in nature. Now the EEOC clearly defines harassment to include offensive conduct such as jokes, slurs, name-calling, mockery, ridicule, offensive objects or pictures and other similar kinds of conduct.
The parameters for what constitutes unacceptable speech or jokes in the workplace have been pretty well defined until now. Certain words that are uniformly viewed as offensive regarding African Americans or other racial or ethnic groups and similar kinds of words that are derogatory terms for women are universally understood to be words that could constitute unlawful harassment. What is regarded as offensive and unacceptable speech has significantly expanded.
This expansion coincides with a growing trend against workplace bullying. Beginning as an outgrowth of the legal issues surrounding race, sex, age or disability-based harassment, there has been a movement in a number of states to make unlawful conduct directed at individuals because of their membership in a protected class. In other words, the indiscriminate harasser who harasses all equally now is an individual whose conduct is not violative of existing laws. The anti-workplace bullying efforts would make all such conduct unlawful.
A Google search of the term “workplace bullying” brings up more than a million hits, including Web sites in the United States, the United Kingdom, Canada and other countries where individuals can get information about how to prevent or deal with workplace bullies.
There is a Web site for a group called “Bully Busters” who proclaim themselves the national coordinators of the U.S. state legislative initiatives to stop workplace bullying. Their site at bullybusters.org references 13 states that have introduced 29 versions of anti-bullying “healthy workplace” legislation.
The legislation, which takes many forms, essentially outlaws “abusive conduct,” defined as conduct or even a single act of an employer or employee that “a reasonable person would find hostile or offensive considering the severity, nature and frequency of the conduct or the severity and egregiousness of the single act.”
According to Connecticut Committee Bill No. 371, “An Act Concerning Workplace Safety,” “Abusive conduct includes, but is not limited to, (A) repeated infliction of verbal abuse such as the use of derogatory remarks, insults and epithets; (B) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; (C) sabotaging or undermining a person’s work performance.” This legislation, if enacted, could outlaw and make an employer liable for speech that occurs every day in workplaces across the U.S.
It is unlikely the movement to further regulate the workplace and eliminate workplace bullying is going to go away.
Another driver in the anti-bullying movement has been the recent publication of articles and books concerning no-jerks rules. Success Factors, a purveyor of performance and talent management software, has made its commitment to a workplace free of “jerks” a major part of its employee relations and workplace performance strategy. The company believes there is a strong business case that tolerating bullying conduct in the workplace leads to lower productivity and adversely affects the overall performance of the organization.
There is a growing body of scientific evidence that the type of offensive conduct that led to the public censure of Imus and Opie and Anthony, when it takes place in the workplace, has a negative impact, not only on the direct victim but on all who witness that behavior in the workplace.
It is likely that Mr. Imus’ remark will have spurred a cleanup not only of our nation’s airwaves but our nation’s workplaces as well. He may well have helped bring together good business practices and social policy in a way that will result in new legislation further regulating and limiting what is acceptable speech in the workplace.
Michael Hanlon is a partner and the employment, benefits and labor practice group leader at the law firm Blank Rome LLP.