The Joke Is On You

From professional standup comedians to the class clowns, from the silly one-liner artists to the masters of sarcasm, everyone can appreciate humor.  The problem is that workplace will be filled with people who have the differing tastes in comedy.  There is a reason why some people like Family Guy, others The Office, others still Curb Your Enthusiasm (my favorite), and still others Two and a Half Men.  I, for one, only find one of the aforementioned shows funny, yet all four are commercial successes.  The point is something that you find humorous will be a total bomb to somebody else.  You can chalk this up to the other person not having a “sense of humor,” but the fact is that you two are just on different comedy wavelengths.

Why is this pertinent information for you as an employer?  Jokes that may please some of your employees may be highly offensive to others, and this could create tension between your employees.  Worse still, a misplaced joke can lead to lawsuits for discrimination and sexual harassment.  Even jokes directed at a certain subsection of your workforce or even those said in private may trickle out through later conversations and reach the very ears that you were trying to avoid.

Let your employees know what jokes are and are not appropriate in the workplace.  Outlawing jokes altogether would lower morale and frustrate many employees.  The key is delineating what kinds of jokes will not be tolerated.  Jokes about national origin are not acceptable in the workplace, nor are jokes about race or ethnicity.  Sexist jokes are also unacceptable.  Jokes about disability, sexual orientation, and age are also to be avoided.  Sex jokes are to be avoided because they can be interpreted as creating a hostile work environment for the purposes of sexual harassment claims.

As an employer, you especially need to be wary of the humor you use around employees.  You have a tighter restriction upon the jokes that you make than your employees have upon theirs.  Never joke about any employee’s employment status or even suggest as a joke that you are considering firing or demoting an employee based on the employee’s race, sex, age, national origin, ethnicity, or disability.  The key is to remember that as an employer, your audience does not find you hilarious.  Bosses are not funny people; this is what your audience has been taught by American society, and any humor with questionable subject matter coming from a boss is seen as hostile and inappropriate, not as good-natured fun.  If you could not tell the joke to a classroom of third-graders without getting reprimanded by the school principal, do not say it in front of your employees.

In conclusion, leave the edgy humor for use outside of work.  There is a reason Chris Rock and Daniel Tosh work in comedy clubs and not in your workplace--your workplace does not have any comedians on its payroll.

Daniel N. Ramirez is a named partner at Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

The U.S. Supreme Court just expanded anti-retaliation rights, again?

Are you thinking about retaliating against one of your employees who recently filed a discrimination claim against you or your company?  The answer is that to do so would be illegal under the anti-retaliation provisions of federal and state law. 

The U.S. Supreme Court recently ruled that employers should not undermine an employee’s ability to bring discrimination lawsuits by taking harmful actions toward those who are closely related to the employee in question or stand up for her in the workplace.  Wait, the US Supreme Court just expanded anti-retaliation rights again?  Yes, now an employee may be able to bring an unlawful retaliation claim if the employee was fired because of someone else’s protected activity.  

Earlier this year in Thompson v. North American Stainless, two employees of the same company were engaged, and one was fired shortly after his fiancée filed a sex discrimination charge against the company.  He then filed suit under Title VII, and the U.S. Supreme Court held that if Thompson was fired because of his fiancée’s claim, it would be considered unlawful retaliation.  Therefore, Title VII discrimination claims are not limited to actions taken against the employee who engaged in protected conduct; adverse employment action against a different employee within the acting employee’s “zone of interest” is also unlawful.  

What does this mean for employers?  The danger for employers is going to be figuring out exactly which relationships are protected.  The Court did not specify which relationships qualify as being within an employee’s “zone of interest,” but it did provide two bright lines:  adverse action against a close family member “will almost always” be considered unlawful retaliation, and adverse action against a mere acquaintance “will almost never” be considered unlawful.   Based on the U.S. Supreme Court’s categorization, fiancées, spouses, siblings, children, and parents appear to be within an employee’s “zone of interest.”  The outcome is not so clear for more distant family members, such as cousins, aunts, in-laws, or for other relationships such as close friends or dating partners.   

Going forward, employers need to be aware that they cannot retaliate against a third-party for actions that are protected by Title VII if the third-party is closely related to the acting employee. 

Daniel N. Ramirez is a named partner at Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com