Government, Courts, and the World of Work

Courts have always had difficulty drawing the line betweeen rude and obnoxious expression and conduct that is illegal. For example, in creating the legal standard for pornography, the US Supreme Court basically said that they would know it when they see it. This was the so-called “evolving community standard.”

Whether consciously or not, the NJ Supreme court has adopted a community standard to determine whether offensive conduct creates a “hostile workplace.”

The case Cutler v. Dorn, decided on July 31st, involved police officers in Haddonfield who routinely engaged in over-the-top anti-Semitic remarks and conduct. In this “boys will be boys” environment, much of the offensive conduct was acceptable, but any reasonable employer would have insisted on a more professional workplace.

In the end, Officer Dorn, who complained about the constant insults,  received a promotion. In other words, even though he had to endure nasty stuff, his pay and rank were unimpaired. Nevertheless, the court essentially created a new legal standard.  For now on, the court will apply a “community standard” when deciding whether racial, religious or sexual insults and conduct cross the line and become unlawful discrimination.

This “evolving community standard” is, of course, a moving target. Some judges will have thicker skins than others.  But it is clear that some revelvant factors will apply, including whether superviors are involved; the frequency of the offensive conduct; whether the employee complains; and whether the employee can demonstrate undue stress realted to the offensive conduct.

This moving target standard will also result in more “zero tolerance” policies because employers, particularly smaller firms, don’t want the hassle of litigation.