United States: Think Before You Joke So You Don't Have To Litigate What's ‘Funny'

Studies show that laughing boosts immunity, eases anxiety and stress, improves mood, decreases pain, and can even prevent heart disease. Socially, laughing strengthens relationships. In addition to the value of humor in our personal lives, we cannot underestimate the power of humor at work. Humor aids in learning and memory retention, increases our ability to persuade others, and helps us to diffuse conflict. Distilled to its most simplest terms: Laughing feels good, and because of this, we enjoy being aroundand actually seek outpeople who make us laugh, not just in our personal lives, but also at work.

But, beware: Not all humor is appropriate in the workplace, both in content and in the context in which it is used. Humor can alienate people and constitute unlawful conduct. In his new memoir, Giant of the Senate, Senator Al Franken explained his initial deliberate decision to be "unfunny" following his lengthy career in comedy in order to be taken seriously during his Senate race and his tenure in office. He discussed his frustration when old jokes from his comedy career were resurrected by his political opponents during his first Senate race, which were taken wholly out of context during his campaign. When he tried to explain the context of one of his jokes to reporters and how it was funny, the humor did not translate and became publicly embarrassing for him.  It was then that he learned a valuable lesson about politics"You can't litigate a joke." Because, as he reasoned, "when you're explaining, you are losing."

Franken's lesson is a valuable one–and not just in the political context but also when considering "workplace funny." Title VII of the Civil Rights of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and other laws prohibiting discrimination against protected groups all have anti-harassment components. Stereotypical jokes or sexually suggestive jokes can rise to the level of conduct that is considered a hostile work environment, which is prohibited by these laws. Jokes that are reasonably perceived as inappropriateeven if they are not intended as inappropriatecan still constitute a hostile work environment. A defense that the conduct or comments were intended as jokes, and not intended to offend, is a non-defense.

Additionally, once a supervisor or an employee is trying to explain the meaning of the joke and its appropriateness and context, they will be forced to rely on third parties, such as workplace investigators, judges, or juries, to make conclusions as to the interpretation of the jokes or conduct and whether it was a violation of the law or company policy. By then, any funny will likely be lost.

Here are some helpful hints when utilizing humor at work:

  1. Stay away (STAY AWAY!) from all humor that touches upon any protected class (e.g., gender, age, sexual orientation, race, religion, ethnicity, disability, etc.). This is true even if we are making comments about ourselves, as the comments can still be construed as offensive to others. If you are bordering on that line, or even approaching that line . . . STAY AWAY.
  2. If you are going to single anyone out as the target of a joke in a large group, make it yourself. Self-deprecation can effectively make people feel at ease. The purpose of humor at work is to bring people together. Humor that singles anyone outeven with the funniest of all intentionscan alienate.
  3. Avoid jokes and sarcasm in writing. We do not always know how these written messages will be perceived because the context is not clear and the reader cannot see our expression or hear our tone. As to sarcasm, when we write the opposite from what we mean, the message may not translate properly. So, for example, the e-mailed response "yeah right," may actually be interpreted as "yes" as opposed to the intended "no," which may ultimately be problematic, particularly years later in litigation.
  4. Avoid jokes in performance reviews or disciplinary documents. As with Tip #3, some documents are sacrosanct and should remain "unfunny" to be taken seriously.
  5. Think before you joke. When preparing a presentation, if you are wondering whether a joke is appropriate, the rule of thumb is that if you have to wonder, it probably is not.

In conclusion, managers should be funny but only at the appropriate time, in the appropriate context, and through the appropriate medium. As the saying goes, "Laugh and the world laughs with youexcept sometimes at work!" Because employment lawyers and HR professionals always seem to take the fun out of everything (e.g., see my prior post about the office Christmas party), I am aware that I have likely taken the fun out of funny, but perhaps we can joke about that someday!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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