The Thin Line Between a Joke and an Insult

by Andrey Vitko

Humor brings insight and tolerance. Irony brings a deeper and less friendly understanding”.[1]
—Agnes Repplier

People tolerate humor differently as the perception of humor is very individualized. Some people do not care about being an object of sarcasm while some people get easily offended. It is not rare that employees and employers make questionable, and even border-line jokes during their course of employment.[2] Yet, the joke has to be really mean to give grounds for legal action, as most of them do not rise to the level of a lawsuit. What kind of joke would probably give a solid basis for a lawsuit?

Apparently, a clearly offensive one does. In a recent case that was ruled on January 27, 2015, the United States Court of Appeals for the Fifth Circuit analyzed the appropriateness of somewhat questionable behavior.[3] On June 19, 2009, a regular safety meeting for the company’s chauffeurs was interrupted by the appearance of a woman wearing a black gorilla suit.[4] After her sudden appearance, the woman started to approach one of the plaintiffs, saying “James, are you ready for this? Here’s your Juneteenth. Oh, these nice big black hairy lips. Don’t you want some? Oh, that nice banana in your pants. You could have worked for La Bare’s. Oh, don’t you want to make me scream.”[5]

Furthermore, no performances of any kind were ever typical practice for the company’s safety meetings.[6] Explaining the performance, the company’s management stated that the gorilla performance was intended to raise morale and lighten the mood.[7] Even though the plaintiffs and other employees felt “extremely offended, embarrassed, and angered by the performance,” the CorpCar manager told the plaintiff to get over it.[8]

The joke continued for several days as the gorilla-dressed woman kept meeting the plaintiff, asking him to “scratch on my little hairy butt for me.”[9] Finally, the plaintiff finally resigned in October 2009, after the management allegedly retaliated against him by assigning him odd hours, with longer spans of times between runs.[10] After that, the plaintiff commenced this lawsuit, alleging, among other claims, hostile work environment.

Analyzing the hostile work environment claim, the court applied the standard to evaluate whether the behavior in this case was hostile. A hostile work environment is one that “is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[11] Furthermore, the court noted that only “extreme” conduct will be found sufficiently severe or pervasive: “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” [12]

While the employer challenged the claim, emphasizing the lack of frequency as the indicents occurred over two days, the court rejected the defendant’s claim, noting that “it is well established that ‘[u]nder the totality of the circumstances test, a single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claim.’”[13] Taking all the evidence into account, the appeals court found that the alleged conduct was sufficiently severe to constitute actionable discrimination, “despite its brief tenure.”[14] Evidence existed from which a jury could easily find that the employer was

pejoratively comparing its African-American employees to gorillas: African-Americans have historically been subjected to such comparisons; the woman in the gorilla suit repeatedly emphasized the ‘black’ aspects of her gorilla suit; management scheduled the performances on and around Juneteenth even though they were aware of its significance to African-Americans; and statements such as “Here’s your Juneteenth”

were made by managers and the woman in the gorilla suit.[15] After consideration of all of the factors, the court affirmed the denial of CorpCar’s motion for judgment as a matter of law and affirmed a new trial pertaining to the jury’s finding that the Plaintiffs were subjected to a hostile work environment.[16]

Overall, plaintiffs that are offended by workplace jokes are not exceptionally rare. The jokes at question are not only racial ones: courts also prohibit making fun of one’s sex, age, or pregnancy. As an example, using the word “prego” was considered to be inappropriate when referring to employees and the court ordered a trial.[17] On a different note, a prominently displayed workplace sign reading “sexual harassment will be graded on a 1 to 10 basis” proved that the company knew of its hostile workplace and failed to act after receiving complaints.[18] While it is undisputable that humor is good for all of us, some people clearly go over the border in their relations with employees. Rest assured, it is a good thing we have courts to sort out what is offensive and what is acceptable, after all.

[1] Agnes Repplier Quotes, BrainyQuote, http://www.brainyquote.com/quotes/quotes/a/agnesreppl131328.html (last visited Feb. 3, 2015).

[2] See James Fisher, Racial joke in an email is focus of lawsuit, DelawareOnline (Jan. 25, 2015), http://www.delawareonline.com/story/news/local/2015/01/25/racial-joke-email-focus-lawsuit/22320135/.

[3] Henry v. CorpCar Servs. Houston, Ltd., No. 13-20744, 2015 WL 327650 (5th Cir. Jan. 27, 2015).

[4] Id. at *1.

[5] Id.

[6] Id at *2.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *3.

[11] Id. at *4.

[12] Id.

[13] Deborah Hammonds, Hiring performer in gorilla suit for safety meeting on Juneteenth created hostile environment, Wolters Kluwer (Jan. 30, 2015), http://www.employmentlawdaily.com/index.php/news/hiring-performer-in-gorilla-suit-for-safety-meeting-on-juneteenth-created-hostile-environment/.

[14] Id.

[15] Id.

[16] Henry, 2015 WL 327650 at *9.

[17] It Was Just A Joke, Boardman & Clark LLP, http://www.boardmanclark.com/reading-room/it-was-just-a-joke/ (last visited Feb. 3, 2015).

[18] Id.

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