IT Policies

False workplace gossip can result in company liability

The results of workplace gossip can be disastrous, so managers need to know how to stop it. This answer to a TechRepublic member's question examines the legal and ethical ramifications of allowing gossip to go unchecked.

Question
“I have been working in a large organization for five years now. Over the last six months, people have started to smirk when they come into contact with me and generally don't seem to be too happy to be seen with me. I have since discovered that somebody has been spreading rumors about me; these rumors have reached all levels, from grassroots to senior management.

“The rumors started with the idea that I have a collection of pornography and buy it through mail order.” I have only recently found this out by overhearing somebody. This rumor has now escalated, and now it is being said that I am gay and using male prostitutes.

“First, these rumors are not true in any way at all. Second, I do not know who is spreading these rumors, though I have my suspicions.

“With this latest piece of gossip, I feel I must act very quickly. What should I do? I see myself as having two options. First, inform my boss of what is going on and insist he takes some kind of action. Second, find the person who is saying this and hit them to show others that I won’t tolerate such defamation of my character.

“I'd be happy if you could give me some help with this.”
This TechRepublic member’s name has been withheld to protect his identity

Answer
Obviously, my immediate advice to you is to not hit anybody. As cathartic as that might seem from your current vantage point, it won’t solve your problem and, ultimately, it would do more to harm your reputation than any hallway gossip could. It also would get you fired and most likely arrested.

My next piece of advice—which under less dramatic circumstances I would hesitate to give—is to not even bother talking to your boss about this right now and to go straight to your company’s HR department with your complaint. (Since you say you work at a large company, I’ll assume formal channels for logging complaints are available to you.) I usually suggest that an employee bring any problem directly to his boss—or to affected peers, if appropriate—but from your letter it seems that this situation has gone on long enough that it needs a third party to diffuse it quickly. And, even though I’ll take your comment about hitting someone as being tongue-in-cheek, you sound riled up enough to perhaps act a little rashly. Again, a calming perspective seems to be in order.

The situation you describe raises some interesting points about what’s actually considered workplace harassment. I’ll get to those in a bit, but to all the managers out there who are reading this column, I just want to make this quick point:
This is how stupid, hurtful, and wasteful office gossip can get if it goes unchecked.

A few months ago I took a little heat from some readers (that’s fine, I’m used to it) when I suggested that managers should not only shun office gossip, but act to quash it when it begins circulating. Orwellian or not, I stand by my contention that even seemingly innocent gossip about coworkers is at best a foolish waste of time and, as in the situation described here, a potential source of liability for both managers and the company.

Of course, I can’t arbitrate the conflict described in this member’s letter without more facts—again, the only specific advice I offer is that the writer see HR immediately. After all, there’s always the possibility the letter-writer overheard a conversation about somebody else, or is otherwise grossly mistaken about what’s really going on. (Such cultures of suspicion and overreaction are natural byproducts of—you guessed it—rampant office gossip.)

But let’s assume for the purposes of illustration that the letter-writer has more or less hit the nail on the head: Coworkers are in fact gossiping about his sexual lifestyle, and have gone so far as to insinuate criminal conduct on his part (unless he lives in certain areas of Nevada or a country outside the U.S. where licensed prostitution is legal). And it’s not just among his peers; the rumors have made it all the way to senior management.

What are the liabilities facing the company?

Liability #1: Stupid waste
Even if the letter-writer is able to settle his differences with whomever is spreading rumors about him—which is highly unlikely—his effectiveness as an employee obviously has suffered because of this situation. In addition, time spent around a watercooler talking about somebody’s porn collection is time that could be spent on work.

Liability #2: Possible local “fairness law” violations
Although sexual orientation is not explicitly categorized as a “protected characteristic” under U.S. federal or state laws, some urban areas have passed local ordinances that make it illegal to discriminate against or harass people based on their sexual orientation, or the perception of their sexual orientation.

Liability #3: Good old-fashioned slander
In legal parlance, “slander” is simply a spoken assertion about someone that can be proven to be false and shown to be derogatory. “He’s a complete jerk” is a subjective assessment, and so can never be slanderous (I wouldn’t even consider this to be “gossip,” in fact—just a little workplace steam). “He employs the services of prostitutes” is an assumed statement of fact, and so can be fodder for a court case.

Let me make it perfectly clear here that I personally do not believe that saying someone is homosexual is derogatory—to me (and hopefully in the culture of the place you work), it’s like saying someone stands 5-foot-9. And regardless of your own moral beliefs, pornography is a legal form of entertainment in almost all communities. However, in the context of this member’s letter, these comments have a derogatory intention, which again could be an expensive topic of debate in the courtroom.

Although it’s easy enough to prove, slander typically is not a huge source of monetary liability under common tort law. Most states say that the slander has to relate to certain types of conduct—the commission of a felony or having a “loathsome disease,” for example—before the injured party is eligible for general damages.

However, if a direct monetary loss can be mapped to an act of slander, the court can choose to award specific damages. In the case of our letter-writer, he claims to be shunned by peers as a result of these rumors, which reach all the way to senior management. If this same employee was passed over for a promotion or a raise, the guilty parties could face some hefty specific damages.

Liability #4: Civil Rights Act Title 7 violations
I mentioned earlier that sexual orientation is not explicitly protected under federal law. But, as always, the law is a little hard to pin down. Many managers incorrectly assume that any claim of harassment involving homosexuality is immune from federal repercussions; that’s not always the case, according to Mike Fetzer, the manager for the Cleveland district of the EEOC.

Fetzer told me that in the scenario described by our member’s letter, the company might very well face “because of sex” harassment liability under Title 7 of the Civil Rights Act. Essentially, it’s illegal for employees to harass coworkers because they fail to meet perceived or stereotypical standards of their gender. For example, if a man is perceived to be unusually effeminate—not a stereotypical trait of the male sex—and is so subjected to unwelcome comments about his sexual lifestyle, that’s harassment “because of sex.” Case law backs up this interpretation of the Civil Rights Act in several contexts. Fetzer went so far to suggest that our letter-writer immediately contact the EEOC field office for the appropriate region.

Liability #5: A complete management breakdown
Out letter-writer claims that rumors about him have reached the senior management level. If that’s the case, then the fact that no one in management has taken steps to stop this nonsense is a damning commentary on the state of personnel management in this company.

“Six months is way too long for something like this to go on,” Fetzer said. “Somebody had to have known something….If this is going on, then management is probably looking the other way at other kinds of inappropriate behavior, as well.”

Sounds like something a plaintiff’s lawyer would love to hear.

About

Ken Hardin is a freelance writer and business analyst with more than two decades in technology media and product development. Before founding his own consultancy, Clarity Answers LLC, Ken was a member of the start-up team and an executive with TechRe...

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