Dear workplace, it’s time to bring back the reasonable person standard

April 8, 2023

An incoming school superintendent in Massachusetts, Vito Perrone, alleges that his job offer was rescinded after he referred to two women in the interview process as “ladies” in an email.

According to news reports, the candidate emailed the women to negotiate his salary and addressed the women (“Cynthia” and “Suzanne”) as “ladies” in a salutation. According to reports, the salutation was viewed as a “microaggression,” and he was told the term “ladies” was hostile and derogatory and that he should have known that as an educator.

His offer was then withdrawn.

I’ve traveled the country this year training managers and employees on workplace civility. The complaint I hear over and over is that people are too sensitive and offended by everything.

I agree.

This is why in my training I focus on the “reasonable person” test. According to the Equal Employment Opportunity Commission, “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”

And while I tell employers to not wait until something is so serious that it creates a hostile work environment before addressing it, I also remind them that they cannot rid the workplace of people who are easily offended by conduct that is not, by a reasonable person, objectionable.

A customary salutation is not reasonably objectionable. There is no evidence here that the candidate intentionally misgendered anyone. How else is he expected to refer to them?

Unfortunately, by taking action for words and conduct that are not reasonably offensive, we water down the real issues: sexist remarks, racial slurs, or derogatory labeling of a disabled employee. When we focus on trivial slights, we ignore extremely offensive conduct that cannot be tolerated in the workplace.

“Common sense is not that common. In the world of social media, people get canceled, and many times the basis is not very ‘reasonable,’” says David Miklas, a Florida employment attorney.

He cites the U.S. Supreme Court’s analysis of a “reasonable person” in a retaliation matter. The Supreme Court held that by focusing on the perspective of a reasonable person in the employee’s position, “we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”

In my training, I explain to employees that employers should take action when there is a “drop of pond scum in the water” because even a little pond scum will spoil the entire work environment.

A “drop of pond scum” refers to things I call “never evers,” such as abusive conduct, sexual remarks, racist comments, disparaging remarks about someone’s national origin, racial slurs, and the like.

I also frequently share a specific example about myself. Being an extreme animal rights person, if an employee tells me she ate veal over the weekend, such a comment will admittedly offend me deeply. That I am personally offended isn’t the test. I’m not a reasonable person when it relates to animals. I’m the extreme – and no workplace should have to accommodate the extreme.

In the name of inclusion, I would hope my co-workers upon learning of my animal rights passion will not intentionally taunt me with words and actions they know will hurt me. But none of this amounts to conduct that should result in disciplinary action against the person sharing conduct that is not offensive to a reasonable person.

Employers need to stop accommodating the people who get offended by literally every petty slight and focus on creating a universal respectful and civil workplace. By accommodating a person offended by a common salutation, employers are creating a divisive work environment where people are terrified to have friendly banter.

It would be different if the candidate knew that one or both of them identified as male or nonbinary and used the term “ladies” nonetheless.

Employers should focus on the “never evers” – anything sexual, racial, homophobic, ageist, or disparaging national origin, disability, pregnancy or religion. CNN anchor Don Lemon referring to a 51-year-old woman as not being in her “prime” is an example of an offensive remark against women. Addressing a Black male, “How now brown cow” (an actual case) is an example of an offensive remark. Threatening to “come in here and shoot up this place” (an actual case) while “joking” is offensive. A reasonable person would find these things offensive.

Workplaces need to stop falling for the lowest common denominator of offensive behavior and start addressing real issues of workplace harassment, discrimination, bullying and abuse.