Discrimination Lawyers warn: A fine line separates comedy from discrimination and harassment
Most people find it easier to recognise discrimination and harassment in the workplace when threatening or intimidating tones accompany inappropriate statements. When the inappropriate behaviour is couched in comedy, it is often difficult to label the words or comments as discriminatory or harassing. However, making off-colour jokes in the workplace about a co-worker’s body shape, body size, or even their bodily functions are discriminatory or harassing.
During a preview performance of a hit rock musical, a lead actor engaged in banter with a female co-actor. It happened while they were on stage, but not while the microphone was on. He made a humorous reference about menstruation. The female co-actor felt uncomfortable and reported the incident to the management. The following day, the actor was told he didn’t have to go to work. The day after that, he received a letter of termination.
The actor concedes that his allusion to menstruation was crude and in poor taste. Comments about other people’s bodies are not appropriate in the workplace, even if they are meant to be funny. He admitted that his comment was due to poor judgment. While he concedes that the theatre company has the prerogative of terminating his services, he asserts that his termination was without due process because he was not allowed to explain or to apologise.
The Performers’ Collective Agreement governs the entertainment industry. In this Agreement, the parties are to resolve a dispute by discussion with the relevant supervisor. The actor claims that this was a single incident and it was the first time such an incident has occurred. He thought that a mediated discussion was more appropriate than termination, which was too harsh a penalty.
This incident comes at the same time when the Live Performance Australia, an association of theatre producers, issued draft guidelines describing a procedure for investigating an allegation of sexual discrimination or harassment. The draft guidelines allow for a range of penalties such as counselling, a formal written warning, a facilitated meeting or mediated discussion and only in the extreme will it involve termination of employment.
The range of penalties will depend on the severity of the offence, the number of times or instances that harassing behaviour was made, and the weight of evidence. The association of theatre producers will even consider the wishes of the complainant. In the case of the female actor, she did not seek or anticipate that her co-performer would be sacked because of her complaint.
In determining the penalty to be imposed upon an employee who is alleged to have committed acts of discrimination or harassment, it is important to remember that an employer must keep the workplace safe and ensure the health of the workers. The employer also has a right to penalise workers for violating the policies of the employer that ensures the safety and health of the workers. But the employer has an equal duty to ensure that workers accused of workplace harassment or inappropriate behaviour will be given due process. The penalty must not be whimsical or precipitate.