NOTE: The following has hard hitting explicit language being used by the court and some may find the content offensive. STOP now if you feel such language may offend you!
Arguably, the “context” of the profanity may make a difference. Thanks to the Game of Thrones” it would appear more people are becoming more comfortable openly using generally considered highly offensive and taboo words. Employers need to react swiftly and decisively despite the popularity of the series.
The courts have addressed this issue in the past. In Reeves v. C.H. Robinson Worldwide, the issue was decided if vulgar language, to which all employees (male and female) are equally exposed, is actionable as sexual harassment.
The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).
The context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate. …
“Words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. … It is enough to hear co-workers on a daily basis refer to female colleagues as … “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” …”
“Cunt,” is the essence of a gender-specific slur. …
The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it.
Therefore while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned “c-word” is the perfect example.
The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. Such language should, at a minimum, be considered unprofessional and a violation of company policy.