When office banter becomes an-HR issue: avoiding a 'locker-room' fall-out

‘Office banter’ (or as others term it, ‘locker room talk’) is a challenge all businesses will be familiar with; indeed, it is one which over recent weeks has dominated the headlines in the US Presidential election as Donald Trump dealt with the fall-out from his so-called ‘locker room’ talk. But whilst social media may well be acting as the immediate judge and jury in that case, banter is a real everyday issue for employers, in whatever jurisdiction they operate.  However, although the issue unites employers, how to manage office banter is complicated by cultural difference and tolerances of different countries, as well as the evolving way in which we all increasingly work.

A friendly exchange, or conduct capable of offending or intimidating others?

Creating a positive workplace culture, from both an internal and external perspective, is one of the critical elements for any employer in recruiting and retaining the best talent. The right sort of banter certainly has a role in that process. Indeed, businesses operating across borders and encouraging their workers to engage and work together over a variety of platforms, may understandably be wary of being labeled the workplace killjoy.

However, whilst office banter is an enjoyable aspect of working life for many employees, most employers are wary of the darker side, where trouble lurks in the form of rude jokes, explicit language, nicknames and teasing that can easily tip into harassment or discriminatory conduct, which in many workplaces will the subject of internal workplace policies and procedures.

Discrimination and harassment protections emanating from European Union (EU) laws mean that employers operating in these countries must take particular care where unacceptable banter rears its head, with claims for discrimination and harassment often carrying unlimited awards, as well as the knock-on impact for the individual involved and the wider employee relations and reputational issues. Indeed, with the upcoming Presidential election, as well as the UK voting for a ‘Brexit’ from the EU, employers across all jurisdictions have been faced with a much greater level of political discussion in the workplace, which all too easily slips into banter that can offend those not sharing the same political stance.

The key issue for all employers managing office banter is keeping the dialogue the right side of ‘fun’, a light hearted exchange, rather than conduct capable of offending or intimidating others. Addressing this issue is critical. The line between playful exchanges and discriminatory behavior can often be a very fine one. And particularly in today’s modern workplace and with the increasing use of social media, the attitude of just one individual may impact on a far wider group than that originally intended.

Evolving attitudes: have they turned full circle?

In recent years, businesses may quite rightly have taken comfort from how attitudes have been evolving in the last few decades.

Taking the UK as an example, if we turn back the clock 30 or 40 years, overtly sexist attitudes and explicit language were relatively commonplace and tolerated as part and parcel of a very male-dominated workplace. However, in recent times we have witnessed women participating across the workforce at all levels. There have been increased protections conferred by the European Union’s drive on anti-discrimination, harassment and victimization legislation. Each addition has assisted in augmenting protection for UK employees (and of course, other employees across the European Union) in nine ‘protected characteristics’: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

However, notwithstanding the significant change in general awareness of discrimination law issues of all kinds; in today’s modern workplace, we appear to be witnessing a turning of the tide in the UK, with inhibitions becoming less restrained and office banter slowly returning to fashion. Our anecdotal experience in the UK is that employees can find it hard to draw a line between how they talk to their friends on social media and what is acceptable conversation in today’s workplace; made more difficult by the fact that typical UK workforce now spans a number of generations.

Examples from Europe in which discrimination has been found from behavior that might be perceived by some as office banter include the following:

• A UK employee was repeatedly called names such as “faggot” because he had attended a boarding school and lived in Brighton, UK. 
• A UK employee in his 50s appeared to be underperforming and during a discussion with his manager was told: “you are not 25 anymore”.
• An UK employee with Irish origins was repeatedly likened to women from a UK television program, “My Big Fat Gypsy Wedding”.
• A foreign employee in Germany repeatedly found xenophobic articles on his desk, describing how the country was “sucked out by immigrants”.
• An apprentice posted in her social media blog that “all homosexuals shall banned from the work place”. This case shows a new dimension of banter, as this offensive behavior reaches far beyond the walls of the traditional work place.

On the contrary in France, a Labor Court recently decided that there was no discrimination from a manager of a hair salon calling a male employee of “faggot”. The Labor Court explained that these words cannot be qualified as homophobic as “it is well known that hair salons regularly employ homosexuals, notably within female hair salons”. This decision was highly disputed by public opinion and by human rights associations. The concerned employee appealed against the decision. The French Labor Code recently included the prohibition of sexist behaviors in a dedicated provision. Prior to this law women who were subject to sexist behaviors were only able to rely on moral provisions.

Whilst these cases have tended to be coupled with a pattern of other offensive behavior which taken together with the behavior and language used were deemed serious enough to warrant a declaration of discrimination, they do clearly show that unacceptable ‘banter’ unfortunately remains alive and well and is an issue that must be carefully managed.

How should employers respond?

Where a culture of negative banter has become instilled in a workforce, instigating a change in attitudes is essential, if claims are to be avoided and a good working environment maintained. Employers must remain very much alive to how banter is influenced by social and generational trends, as well as cultural tolerances.

As a means of tackling this, it is recommended that employers consider the following steps:

• Policies: In each jurisdiction, implement and maintain unambiguous anti-discrimination, bullying and harassment policies and ensure that these are clearly communicated to all employees. Remember, just because something is not an issue in one country, it doesn’t mean that it isn’t a problem in another.
• Social media: Be clear on the conduct expected of employees in using both work and personal social media. A personal social media account can very quickly turn into a workplace issue where an individual’s friends include their workplace colleagues or their account is made available for all to see. It should be at the forefront of every employee’s mind that opinions expressed now can return to haunt them in many years to come! 
• Diversity: Take steps to encourage a working culture that embraces diversity, explaining to employees through written communications, training (for example, unconscious bias training) and other means what diversity is and the benefits that it has to an organization. 
• Training: Provide regular training for employees to ensure that they have sufficient understanding of what is acceptable and unacceptable conduct, and the potential consequences of unacceptable conduct. 
• Grievances: Take employee’s complaints very seriously straight away and conduct thorough investigations and (where appropriate) follow up with disciplinary action where harassment or discrimination is proven on the balance of probabilities. These actions should be taken in accordance with the procedures set out in the relevant company policies and any sanction imposed should be reasonable and proportionate to the offending conduct. 
• Look and Listen: Employers can help themselves by ensuring that managers are well trained in these issues and are visible in all parts of the workplace, with their ears and eyes open to help them to ensure that appropriate standards are maintained. 

Whilst we are not suggesting converting the workplace into a cheerless environment in which employees are fearful of making even the friendliest of exchanges, it is important that boundaries are set to avoid fostering a culture that dangerously strays into the realms of discrimination. It is undoubtedly the case that employers remain able to encourage a pleasant and sociable working environment without sanctioning intimidating, hostile or unwanted behavior.