Memes are nothing new in online culture, and, in our increasingly interconnected world, it’s no surprise that they’re showing up in the workplace. But what happens if coworkers find those memes offensive? What if they are about protected characteristics?
The Federal District Court for the Eastern District of New York recently concluded that potentially-offensive political memes aren’t enough to support a hostile work environment claim under Title VII, but other factors need to be considered.
Extent of Title VII
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination and harassment based on a protected characteristic (such as race, sex, religion, etc.).
However, as the Supreme Court explained, the law doesn’t create a “general civility code” in the workplace. Simple teasing, offhand comments, isolated offensive conduct, or occasional vulgar or crass comments from coworkers don’t rise to the level of discriminatory harassment under Title VII.
Instead, Title VII applies only to workplaces with extensive discriminatory intimidation or insults that are severe enough to alter another employee’s work conditions and create an abusive environment. Any allegations of a hostile work environment need to show that the employee felt that the work environment was abusive and that conduct would be hostile or abusive to the average, reasonable person.
To determine whether a workplace is hostile, federal courts consider (1) the frequency of discriminatory conduct, (2) its severity, (3) whether the conduct is physically threatening or humiliating, and (4) whether it unreasonably interferes with an employee’s work performance. Each of these factors is evaluated cumulatively so courts can consider the full context of the circumstances.
Handling Political Memes
A recent opinion out of the Eastern District of New York dealt with allegations of a hostile work environment based on political memes in a workplace group chat. The claimant thought they were offensive.
The court held that political memes alone are likely not enough to sustain a hostile work environment claim, even if they include offensive imagery relating to a protected characteristic.
Importantly, however, imagery that is deeply offensive and inherently threatening to a protected characteristic may be enough to sustain a claim.
However, the overall circumstances in the workplace must be considered. If offensive memes are part of a wider workplace culture of discriminatory intimidation or insults, this may be sufficient to sustain a claim.
In this case, the court held that, without other discriminatory conduct, offensive memes targeted at specific political figures likely don’t rise to the level of a hostile environment. Even if the memes include offensive symbols, they’re likely still insufficient to sustain a claim. When an offensive symbol is used to mock a politician’s allegedly-discriminatory opinions, this likely wouldn’t be enough to create a hostile work environment, because this use wouldn’t be physically threatening or humiliating to the protected class.
Rather, the meme’s sender is criticizing the politician’s perceived lack of support.
Memes with inappropriate depictions of people don’t automatically create a hostile work environment either, but it depends on who and what they’re depicting. Inappropriate images depicting an employee, even edited images, have been sufficient to create a hostile work environment. Sharing sexual images also has been sufficient to sustain a hostile work environment claim, in conjunction with other inappropriate behavior.
However, the court held that memes making fun of a politician’s alleged sexual misconduct likely aren’t enough to sustain a hostile work environment claim, even if the meme includes a depiction of this misconduct. Again, the court reasoned that memes like this are criticizing the politician’s allegedly inappropriate behavior, not celebrating or supporting it. Even though these memes may depict inappropriate behavior, they don’t victimize an employee based on a protected characteristic.
Another recent decision out of the Southern District of New York explained that a worker’s decision to favor posts on one side of a hot-button political debate doesn’t support an inference of discrimination based on race or ethnicity.
Predicting the Future of Court Decisions
Importantly, courts have repeatedly emphasized that Title VII isn’t a general civility code that would restrict ordinary socializing in the workplace. It only prevents conduct that’s severe enough to alter the conditions of the workplace.
So what kind of memes would be severe enough to create a hostile work environment?
Political memes criticizing a politician’s allegedly discriminatory opinions likely aren’t sufficient to sustain a claim, even if those memes include insensitive or offensive imagery. However, if they include imagery that’s inherently threatening to a protected characteristic, this may be enough to create a hostile work environment. Additionally, if they’re targeted at a protected characteristic or a specific employee on the basis of a protected characteristic, this may also be sufficient.
Importantly, though, a court would consider the frequency and severity of any allegedly discriminatory conduct, whether the behavior is threatening or humiliating, and whether it unreasonably interferes with workplace conditions. Any potentially offensive memes would be one aspect the court considers if a hostile environment claim is raised.
New York discrimination law tends to be more protective of employees, so business owners and managers should remain vigilant. If you’ve got questions about this or other employment-law-related issues, let us know.
