The Cost of a “Joke” in the Workplace

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Derogatory and discriminatory comments in the workplace have long been present. However, with the development of increasingly employee-friendly workplace and human rights laws, employees who feel targeted by such conduct are more readily advancing formal complaints. In turn, employers are facing heightened expectations to respond promptly and effectively to inappropriate workplace comments and conduct.

Many organizations have a tried-and-true system in place that includes investigating the incident, assessing and mitigating the impact on those affected, and imposing the appropriate disciplinary action on the offending employee.

Assessing and imposing discipline that is proportionate to the misconduct can be challenging for employers. Failing to respond appropriately may create legal risk, whether the discipline imposed is viewed as overly severe or insufficiently responsive to the seriousness of the conduct. Fortunately, employers can look at how courts, arbitrators, and tribunals assess workplace misconduct for guidance in evaluating the appropriateness of their own disciplinary responses.

Decision-makers are increasingly placing weight on impact over intent when it comes to inappropriate comments. Employees may characterize comments as jokes, quotations, or private conversations, but such explanations will carry little weight where the effect of the conduct is exclusionary, discriminatory, or hateful. Where employee remarks jeopardize the broader workplace safety, decision-makers are showing a clear willingness to uphold serious discipline, including termination for cause.

At the same time, an employer’s response must still be grounded in a fair, contextual, and proportionate assessment of the circumstances. While termination may be reasonable and appropriate in certain cases, lesser forms of discipline may be warranted in others, depending on the nature of the conduct, the surrounding context, and the employee’s overall record.

Factors that a decision-maker is likely to consider in assessing whether lesser discipline should have been imposed may include:

  • The comment arose as a “momentary flare up”;
  • The employee has no prior incidents;
  • The employee makes a timely and sincere apology to those affected; and
  • The employee demonstrates accountability and remorse.

Key Takeaways for Employers

Employers must take reasonable measures to prevent and respond to inappropriate workplace conduct, including:

  • Clear policies on respectful conduct;
  • Consistent training on respectful workplace conduct and reporting procedures;
  • Adopting reporting mechanisms and well documented investigation procedures; and
  • Taking measures following incidents of hateful or inappropriate speech to address the harm caused, educate employees on the impact of their language, and train against future use.