Tag Archives: protected class

“Culture of Profanity” or a Hostile Work Environment? Massachusetts Court Issues Ruling on Permissible Use of Expletives in the Workplace

By on August 22, 2016

Hostile work environments exist when an employer’s statements, actions, and behavior make it impossible for an employee to perform their job. Massachusetts law protects employees against discrimination and hostile work environments by prohibiting an employer, or its agents, from refusing to hire an individual, discharging an employee, or discriminating on the basis of a protected class status.  Protected class status exists based on an individual’s “race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, or ancestry.” 

Recently, in Griffin v. Adams & Assoc. of Nevada, et al., the United States District Court for the District of Massachusetts determined that a former employee sufficiently presented evidence to bring a hostile work environment claim based on sexually derogative terms directed at him by his former supervisor and others.

In Griffin, a former employee filed suit for discrimination based on his sexual orientation, harassment, and retaliation against his former employer and his former supervisor.  In defense, the employer argued that the employee failed to establish a hostile work environment claim because the conduct directed at him was not “of a sexual nature” and was not a comment on the employee’s gender or sexual orientation.  In making this argument, the employer relied on a prior Massachusetts Appeals Court case, Prader v. Leading Edge Products, Inc., which held that use of “crass garden-variety expletives” in a workplace, which are not sexual commands or lurid innuendos, may only evidence a “culture of profanity” in the workplace and would be insufficient to establish a sexually hostile work environment.

The District Court’s summary judgment decision in Griffin, dismissed the employer’s Prader argument.  The Court determined that the comments directed at Mr. Griffin went beyond “garden-variety expletives” (such as those commonly used with or without meaning or reference to a sexual connotation), making it reasonably possible to construe the statements as sexual innuendo that “could suggest discriminatory animus.”  The District Court held that the specific nature of the statements, when viewed with consideration to previous statements (derogatory comments about the former employee’s attire and mannerisms being “feminine,” describing his office décor as “flamboyant,” and using derogatory terms based on his sexual orientation), went beyond statements “tinged with offensive sexual connotations” and could be reasonably viewed as discrimination based on sexual orientation and gender stereotypes.

The Griffin decision allowed the employee’s hostile work environment and retaliation claims to survive summary judgment, permitting the employee to proceed with those claims against the defendants toward trial.  While the Griffin decision did not determine whether the employer’s actions actually violated Chapter 151B, it should serve as a stern reminder to employers that protected-class discrimination and hostile work environments are not tolerated under Massachusetts law.  While the use of common profanity may be a recognized element of a work environment, that may not excuse the employer from liability where profanity with offensive connotations is targeted toward particular employees.  Employers must work with their human resources staff and employment counsel to create and maintain policies that promote healthy work environments and prohibit discriminatory conduct.  Should you have questions or concerns regarding Massachusetts’ anti-discrimination laws, hostile work environments, or your company’s practices, consult a Massachusetts employment attorney.

Transgender Inclusion in the Massachusetts Workplace

By on June 10, 2015

Massachusetts has long been a leader in civil rights, and several years ago Massachusetts joined the minority of states that provide explicit protection against discrimination on the basis of gender identity. Massachusetts’ anti-discrimination law was amended to add “gender identity” to the list of protected categories which extend to the workplace, housing, and government agencies. While that law provides much needed protections, employers are increasingly concerned about workplace issues specifically affecting transgendered people.

One question facing employers is harassment. As gender identity is part of the broad anti-discrimination statute, harassment and similar conduct is handled the same as it would be for race, gender, or other protected categories. Employers should include gender identity as part of their regular anti-harassment workplace training. The anti-discrimination statute also impacts the hiring of employees, and employers should refrain from asking any gender identity-related questions unless the gender of the employee is relevant to a bona fide occupational qualification. The law does permit such exceptions, but employers must ensure the qualification is legitimately needed and cannot be viewed as a pretext.

Another question facing employers is how to handle restrooms. The best practice would be to have one gender neutral bathroom, which appears to be a growing trend. The White House recently opened a gender neutral bathroom, as have several universities. When having a gender neutral bathroom is not possible for financial or other reasons, employers must defer to the employee’s choice of restroom, which is consistent with just-announced federal best practices issued by the Department of Labor. Forcing an employee to use a certain restroom would likely be considered discriminatory.

Some of the country’s largest companies have already implemented policies that acknowledge and respect gender identity issues. By one count, over half of Fortune 500 companies have included gender identity in their nondiscrimination policies. While protecting transgendered people is law in Massachusetts, it is also good business. Every business should strive to employ the most talented people it can, and gender identity (just like race, religion, and other personal categories) is simply irrelevant to the quality of the employee. Employers should work with their human resources staff and employment counsel to craft and implement policies that maximize the available workforce.  Should you have questions or concerns regarding Massachusetts’ anti-discrimination law or your company’s practices, consult with your employment attorney.