“Language is never innocent” wrote French philosopher Roland Barthes.

Before becoming an employment lawyer and workplace investigator, I studied philosophy. I must confess that I always hoped that my philosophy background would come in handy.  That is still up for debate, but as a workplace investigator and employment lawyer, I am often charged with having to determine whether the use of foul or vulgar language or other harsh words are considered a form of workplace harassment.

Workplace Harassment vs. Legitimate Communication

I agree with Roland Barthes that language is rarely innocent. While we cannot (and should not) be held accountable every and all day for every word we say, recognizing the differences between workplace harassment and legitimate communication is a complicated task and one worth considering.

Most organizations I work with are committed to maintaining a work environment that is based on respect and dignity. The struggle is know-how to apply theory to practice – how to make the law (and its constraints) resonate for an organization whose culture is neither pristine nor perfect.

Take for example an organization where swearing and gossip is the norm. Is it ok to punish an employee who swears or who is unnecessarily abrupt if such conduct permeates the workplace each day? How does one draw the line?

Vagueness in Reasonableness

It may be helpful to consider what harassment is not.

A phrase I often hear and which is touted in the case law is that harassment should not be confused with legitimate, reasonable management actions. I am skeptical of this phrase – in part because it is overused and applied too subjectively.

The often mentioned test of reasonableness can lead us astray. Examples of the type of conduct which would not be considered harassment is far more helpful:

  • Correcting performance deficiencies
  • Putting an employee on a performance improvement plan
  • Asking for medical information in support of an absence

These examples (which are taken from cases) make sense. But in my experience, when it comes to workplace harassment (leaving out the sexual kind), the language and the tone of a manager can trigger an employee into feeling harassed and humiliated when really all that manager is doing is correcting or trying to improve the employee’s performance. Tone and word choice can determine whether one conversation is harassing or not. Similarly, a person’s cultural background and life experience can be equally determinative.

Loss of Innocence in Improving Employee Performance

This is where Roland Barthes’ words are so prescient. Word choice and the decision about how to deliver those words must be thought out and said in respectful way which does not admonish, but which truly helps to correct. If not, difficult conversations will start becoming off limits. Already the legal pendulum has shifted to a place where employers are reluctant to say anything negative to their employees for fear of being accused of harassment.