My new blogging platform and email newsletter have their advantages, especially the newsletter.
For example, when a daily post goes out to my blog email subscribers (and, if you haven’t subscribed yet, you can do that here), one of the analytics I can track is the most-clicked hyperlinks. Welp, in last week’s “Heil Hitler” post, the most popular links were the two that were marked NSFW. That means NOT SAFE FOR WORK. To put this into better perspective, there were three times as many clicks on the NSFW links as there were to the link to the Fifth Circuit opinion I address. Although my analytics don’t literally say it, I will: you guys are hella-twisted.
But, hella-twisted or not, you’re still the best readers on the planet.
Hey, maybe we can just blame those clicks on the plaintiffs’ lawyers who read this blog. (Don’t worry. I love you too. Just not nearly as much). But, I’ll tell you what. One of ’em came through big time by forwarding me a copy of this opinion, which is a great juxtaposition *** Googles “juxtaposition” — nailed it! *** to what I wrote last week about how no reasonable person would construe a single “Heil Hitler” comment from a manager as creating a hostile work environment.
For my New Jersey crew, you know that we don’t roll that way. In Smith v Hutchinson Plumbing Heating Cooling, the New Jersey Superior Court reaffirmed that a single comment, in this case a religious comment, can create a hostile work environment. That’s especially true when the comment is paired with a threat of violence. (In this case, the plaintiff alleged that a sales manager put his pocket knife up against the plaintiff’s testicles and referred to “you Jews” when addressing him):
The words, which specifically referenced plaintiff’s faith or ancestry, were accompanied by a physically threatening and humiliating act. And they were spoken by plaintiff’s supervisor. Although it is the rare case in which a single remark is found sufficient to create a hostile environment, this case was not limited to words but involved a physical threat – with a knife.
While, technically, the “Heil Hitler” case is distinguishable — no physical threat there — just make sure that you have safeguards in place (e.g., policy, training) to avoid anything that smells this bad.
And that goes double for you folks clicking the NSFW links!