posted on Monday, December 10, 2007 4:31 PM
by
Rod Satterwhite
Sad Milestone for Santa
Workplace training has reached a new low. In this article from an Austrailian newspaper, it appears that a temporary staffing agency has told its department store Santa workforce this season that they may no longer use the phrase "Ho! Ho! Ho!". The reason: (and I kid you not) "[t]he term 'ho' is . . . American slang for a prostitute" and, according to one would-be Santa, "[w]e were told it (ho) was a derogatory term for females and can upset people." Instead, according to the training program, the Aussie St. Nicks were told to spread the holiday sprit with a rousing "Ha! Ha! Ha!".
Now despite our bitter and somewhat jaded approach to workplace harassment issues, I think I can speak for both Lou and myself when I say this goes a little too far. Silly as this story is, it is also somewhat indicative of a growing trend in the workplace to over-regulate worker behavior out of a fear, however remote, of offending someone. Such sterilization, however, is not what the law requires.
This trend, in fact, warrants a quick reminder of the real standard for illegal workplace behavior. To be actionable, offensive behavior must be sufficiently severe and pervasive to affect a person's ability to perform the functions of their job. Courts weigh these two factors on a sliding scale to determine whether the behavior would be objectively offensive to a reasonable person, so the more severe the behavior (such as physical touching or assault), the less often it has to occur in order to constitute harassment. Likewise, relatively minor behavior (jokes, comments, etc.) must happen more frequently to reach an actionable level. The standard is not, and never has been, that employers must eliminate any potential source of offense from the workplace. Indeed, if it did, law firms might not exist.
In my experience, most employers genuinely want to create an environment for their employees that is comfortable and free of harassment. However, the current litigious environment, exacerbated by the ever-thinner American psyche, has caused many employers to become gun shy about what they permit their employees to do and say. There is still a place for balance and common sense in managing workplace behavior, and it's possible for employers to legally strike that balance without slapping a gag order on jolly old St. Nick. Oops. Did I say "old"? I meant "experienced."