Humor in the Workplace and the Law

When Laughter Creates Legal Liability Risks for Business Owners

Woman experiencing touching by a male coworker

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A good sense of humor is often an admired trait in men and women. But what defines a sense of humor is something uniquely personal to each individual. What may be funny to you could be offensive to someone else. And, when it comes to workplace humor, what you may think is funny could even be illegal.

Federal and many state’s laws protect minorities, disabled persons, women, and other employees from harassment, slander, and discrimination at work. A poorly chosen joke or off-the-cuff remark intended to be funny could cause you legal trouble.

There is no clear-cut legal definition of harassment, which makes it easy to file a lawsuit against an employer that participates in, or does not stop, inappropriate behavior in the workplace.

According to Eugene Volokh, Professor of Law, UCLA School of Law:

Speech can be punished as workplace harassment if it's: "severe or pervasive" enough to … create a "hostile or abusive work environment" based on race, religion, sex, national origin, age, disability (including obesity), military membership or veteran status, or, in some jurisdictions, sexual orientation, marital status, transsexualism or cross-dressing, political affiliation, criminal record, prior psychiatric treatment, occupation, citizenship status, personal appearance, "matriculation," tobacco use outside work, Appalachian origin, receipt of public assistance, or dishonorable discharge from the military; for the plaintiff and for a reasonable person.

When it comes to harassment in the workplace—even in the form of “good” humor—“innocent until proven guilty” generally does not apply. Because harassment and discrimination laws contain broad legal language, it leaves room for substantial liability risks for unwary employers.

Humor should be inclusive to be well-received. Sexist, racist, and ageist jokes and crude remarks label certain individuals, or groups of people, as inferior in some way and create exclusions. Not only is this inappropriate, but offensive displays of humor, even when not directed at a specific person, can lead to sanctions, terminations, and lawsuits.

Legal Precedents Regarding Humor in the Workplace

In Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No. 9401006004 (Nov. 28, 1995), The Montana Human Rights Commission found favor with a complainant who was only indirectly offended by off-color jokes.

In Snell v. Suffolk County, 611 F. Supp. 521, 531-32 (E.D.N.Y. 1985), an employer lost a harassment lawsuit and was prohibited from using "derogatory bulletins, cartoons, and other written material" and "any racial, ethnic, or religious slurs whether in the form of jokes, jests, or otherwise.”

Humor That Is Never Appropriate in the Workplace

Certain types of comments, jokes, and pranks are never appropriate in the workplace and should not be encouraged or tolerated. Many topics are legally mandated as “off limits” in the workplace, and your employees should be prohibited from innuendos, comments, or references about:

  • Sexual orientation or acts
  • Religious or political practices or beliefs
  • Race or ethnicity
  • Social status, gender, or age-related stereotypes
  • Physical appearance and attributes
  • Weight-related issues
  • Disabled persons, or persons with any form of diminished capacity
  • Any other topic that targets an individual or group as being inferior

According to lecturer and psychologist, Dr. Joni Johnston, not all humor is created equal. Johnston believes, “Research has shown that there is a distinctive difference in the health benefits of positive and negative humor. Negative humor, i.e., humor that is exclusive or offensive, does not have the same positive physiological effects on one’s body and mind. Apparently, our bodies are as sensitive as our feelings; we physiologically respond to hurtful as if our bodies were under attack.”

The purpose of setting strict limits on humor in the workplace should not be to eliminate all the fun at work, or to interfere with interpersonal relationships. But setting appropriate boundaries to foster a healthy work environment, free from hostility and legal exposure, will help make everyone happier.

Sources: Eugene Volokh. “What Speech Does "Hostile Work Environment" Harassment Law Restrict?” 85 Geo. L.J. 627 1997. and Dr. Joni Johnston. "Lessons From the Humor Police: How to evaluate workplace humor". April 3, 2008.