By Michael J. McCall, J.D.

“What is offensive to most reasonable people in 2016?” This question is often at the heart of a harassment or discrimination lawsuit filed against an emergency services organization (ESO) by a former or current employee or volunteer. On a daily basis, ESO leaders must make determinations about what language or behaviors in the workplace may “cross the line” and put the organization at risk.

This article examines confusing questions about what actually constitutes unlawful harassment, discrimination, retaliation or other work-related misconduct. It is not uncommon in today’s
society to misinterpret what constitutes lawful “locker room talk or behaviors” as opposed to potentially harassing or discriminatory language or activities while on-the-job. Not knowing the difference could lead to ESO leaders’ jobs and professional reputations being in jeopardy, as well as costly and time-consuming litigation for the entity.

Societal Norms
As a societal question, what is considered offensive by people in 2016? As a legal question, what work-related behaviors are considered offensive by most reasonable people today? These are tricky questions to answer.

In many respects, it could be said that people are easily offended. On the other hand, we live in a society where practically “anything goes”; just look at the language and subject matter on major network television programs at 7:00 PM on any given night. We are definitely not living in the “Beaver Cleaver” era of mainstream television or other entertainment. Likewise, a study conducted by computer security company McAfee titled “Love, Relationships and Technology” details that nearly 50 percent of people have used their mobile device to send or receive sexual content via video, photo, email or text messaging to people they know or strangers.

Confusing questions for ESO leaders become, “If certain behavior or language isn’t offensive while off-duty, how can that same language or activity be regarded as offensive and unlawful on-the-job? Does a no tolerance policy for harassment force us to completely sterilize the work environment and coworker interactions?”

Bullying in the Workplace
Adding to the confusion, bullying is a term that increasingly makes its way into the discussion of what may qualify as unlawful behavior in the workplace. Many senior workers are surprised to learn that all 50 states have now passed anti-bullying legislation or regulations for schools, resulting in young people entering the workforce with as many as 12 years of
anti-bullying education and training. These younger workers may believe certain conduct will cross a legal line in the workplace, but what constitutes bullying in high school may not necessarily translate to unlawful workplace harassment. Currently, there does not appear to be federal or state laws in place that define or prohibit workplace bullying. The risk management question for ESO leaders becomes, “Is the worker being subjected to bullying because of race, gender, religion, retaliation or for another recognized unlawful or discriminatory basis?”

Is it unlawful harassment or discrimination?
While there is not perfect ‘20/20 vision’ in identifying all forms of unlawful harassment or discrimination in the workplace, the following analysis may be considered to help ESO leaders determine behaviors that “cross the line” and put the organization and its members in peril.

• Why is the person being harassed or subjected to a hostile work environment? Harassment and discrimination laws aren’t intended to create a general civility code for the workplace. Petty slights, annoyances and infrequent or isolated incidents (unless extremely serious) are not illegal. Instead, harassment is a form of employment discrimination that violates federal or state laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, and the Americans with Disabilities Act (ADA) of 1990. Thus, harassment is considered unwelcome conduct that is based on legally protected classes such as race, color, religion, sex (including pregnancy and sexual harassment), national origin, age (40 or older), disability, military/veteran status and genetic information. Individual states and local jurisdictions may also prohibit workplace discrimination based on other legally protected grounds, such as sexual orientation, gender identity, gender expression andmarital status.

• Is enduring the offensive conduct a condition of continued employment? Unlawful harassment may involve personnel that are threatened and told they must engage in or tolerate offensive conduct, such as sexual harassment in order to remain an employee or volunteer. The threat alone of suffering negative tangible employment action may result in liability on the part of the ESO. 

• Is the misconduct severe or pervasive? In order to be considered unlawful, words or behaviors must also be severe or pervasive enough to create a hostile, intimidating or abusive work environment to most reasonable people.¹

• Determining the severity of misconduct may hinge on whether the behavior unreasonably interferes with the work environment or victim’s ability to perform the job, even though it occurred once or rarely. Harassment is pervasive; it occurs frequently and often enough that it becomes a defining condition of the work environment, even though a single or rare incident may not qualify as harassment.

• Is the behavior offensive to most reasonable people? Under this objective test, it must be determined whether the conduct would be considered unlawful harassment by most reasonable workers. Remember that those making this determination are not from the emergency services industry. Judges, jurors, state or federal investigators (e.g., Equal Employment Opportunity
Commission) likely view those in the emergency services industry as heroes and expect respect and professionalism on-the-job.

Conclusion
Anyone familiar with the emergency services work culture understands it is not stuffy, but instead relies on a trusting “family environment.” Sometimes this informality may increase the risk of certain language or behaviors at work crossing a legal line. ESO leaders are encouraged to scrutinize work-related behaviors, regardless of whether referred to as “locker
room talk, just having fun, teasing or a ‘rite of passage.’” When the lawsuit against an ESO makes headlines, the spotlight will turn to its leaders to show whether they met their duty to prevent, identify and rectify work-related harassment, discrimination and retaliation.

¹ U.S. Equal Employment Opportunity Commission; Laws, Regulations and Guidance; October 28, 2016
Other resources:
McAfee; Love, Relationships and Technology Survey; February 4, 2014
U.S. Department of Health and Human Services; https://www.stopbullying.gov/laws/
Workplace Bullying Institute; http://www.workplacebullying.org/faq/#14
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75