How to Identify the Line Between Acceptable and Actionable Language in the Workplace

By Kevin Hylton | LexisNexis Practical Guidance

Employment lawyers are tuned into a variety of cases bubbling up in federal and state courts that could potentially have an impact on corporate exposure to workplace discrimination claims, in spite of the relative quiet in this area of the law in recent years.

“Although the U.S. Supreme Court hasn’t yet teed up any blockbuster workplace discrimination cases for its new term, experts say a few cases already on the justices’ slate may leave a lasting imprint on employers,” reported Law360 Employment Authority on October 14, 2022.

One of the specific areas of workplace discrimination in which employment law practitioners are counseling clients relates to the seriousness of language in the workplace, perhaps a less-dramatic illustration of discrimination but one with important legal exposure implications for employers.

“Nearly all of the employment law statutes came out of the Great Society legislation passed in the 1960s, including the landmark Title VII of the Civil Rights Act of 1964,” said Richard Cohen, a partner in the New York office of FisherBroyles, who has litigated and arbitrated complex employment disputes for more than 40 years. “This statute prohibits employment discrimination based on race, color, religion, sex and national origin. These categories sit on all of our seismic fault lines as a nation, so you can be sure that what happens in the workplace is a microcosm of what is happening in our larger society.”

Cohen noted that, while Title VII did not start out as an anti-harassment statute, it eventually was interpreted to protect workers against harassment as well — and when that took place, “the number of cases filed under Title VII just skyrocketed.”

“The sad truth is that back in the 1950s and 1960s, people were unafraid of using offensive language regarding people of other races and ethnicities in the workplace,” said Cohen. “Now, after thousands and thousands of workplace discrimination cases based on the use of language that was deemed as harassment, most workers are much more careful with their language. The cases that are filed in the courts now tend to be much more subtle and more difficult to decipher.”

Cohen cited the importance of language related to age discrimination as an example. While very few corporate managers would be guilty of overtly saying that an employee is too old to apply for a specific job or role in the organization, there have been cases successfully brought against employers over the use of language such as someone who is “ancient” or even stand-in language for limiting the pool of applicants for a job such as requiring that someone be a digital-native who has a mastery of internet technologies.

However, even carefully framed language can sometimes not be enough to avoid workplace discrimination claims against employers.

“Another way that companies have tried to get around workplace discrimination claims related to language by advertising open positions in college newspapers or other publications that are exclusively read by young people,” said Cohen. “Some courts have found in favor of plaintiffs in these kinds of cases if they were able to determine from the evidence that there was a purposeful strategy to discriminate against older workers, even if the language used in the advertisements was not blatantly discriminatory.”

Cohen noted that courts have made similar rulings for plaintiffs who have demonstrated that employers advertised for workers by excluding certain zip codes (or area codes) based on age or race considerations.

At the same time, plaintiffs often overplay their hands when it comes to seeking legal recourse for what they perceive to be “bullying” language used by employers who subsequently terminated them. While virtually every fired worker thinks they have a wrongful termination case because someone used unkind language toward them, Cohen noted that virtually every jurisdiction in the U.S. extends anti-harassment protection to workers exclusively related to one of the “protected classes” under Title VII. There is no general “anti-bullying language” workplace discrimination law on the books in the U.S.

“In the end, the lesson of history is that people are very clever and the law lags behind society, so as long as people are clever and want to achieve something for their companies that is not legally allowed, they will find ways to do it,” said Cohen. “But eventually, employment law will catch up.”

The Lexis Practical Guidance team has created a comprehensive Employment Discrimination Charge Resource Kit that contains links to practice notes, checklists and document templates to assist practitioners handling a wide range of employment discrimination matters.

In addition, Lexis Practical Guidance publishes a Discrimination, Harassment and Retaliation State Practice Notes Chart, which provides employment law practitioners with a snapshot of all available guidance content related to laws that prohibit discrimination in each individual state.

I had the privilege of interviewing Cohen on the latest episode of our “Practical Guidance: Labor and Employment Series” podcast, where we invite experts to provide insights on timely employment law issues facing legal practitioners. Listen now or download this new episode regarding the importance of understanding the line between acceptable and actionable language in the workplace.