Monday, January 13, 2014

Cursing as religious harassment—context matters

With The year was 1985. I was 12 years and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the dinner table on my first night home from camp, seeking my seasoning on my meal, I asked my mom to “pass the f***king salt.” Needless to say, they were very surprised, and very un-amused.

I thought of this story after reading Griffin v. City of Portland (D. Ore. 10/25/13) (h/t: The Blue Ink), a case in which an employee of deeply religious convictions claimed religious harassment based, in part, on her co-workers’ repeated taking of the Lord’s name in vain.

The court concluded that a line exists between the use of general profanity in the workplace and the use of profanity directed at the plaintiff because of her religion:

The record suggests that Parks and Recreation employees at the Mt. Tabor yard frequently used profanity out on the yard and in the office. Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With language, context matters. For example, it was okay to use salty language to ask for the salt at summer camp; at the dinner table with my parents, not so much. Similarly, Ms. Griffin’s employer will skate on her harassment claim if she cannot prove that her co-workers cursed “because of” her religion.

Nevertheless, employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees.