A good practical joke is an art form. Unfortunately, few people ever obtain professional training in the art of practical jokes – they get their training through experience, sometimes with awful consequences. Most remember Margaret "Hot Lips" Houlihan and the escapades of the M.A.S.H. 4077 doctors. Many remember the jokes that Hawkeye and Trapper played on Hot Lips, sitting on their lounge chairs facing the shower tent, when suddenly the tent flaps fly up, exposing Hot Lips in the shower. Few remember any outcry about these pranks – instead, M.A.S.H. became one of the most popular television shows of all time. The Hot Lips shower tent prank would probably not pass muster today, whether on T.V. or otherwise. Rather, today these pranksters would be vilified as perverts.
From a legal perspective, especially on the management-side of labor and employment law, it is evident that many more of these lines must not be crossed. Examples abound in case after case through the mistakes brought to the courts by employees around the country. For employers, this is not just an individual art form. This is a major issue because employers face liability for the pranks and practical jokes that occur in the workplace everyday.1
Employers see workplace humor as a "hobson’s choice." If an employer does not take aggressive action to prevent practical jokes or humor in the workplace, the employer2 may become liable for those that go awry.3
The rationale of these "horseplay" cases is that where individuals are gathered together at work, they are given to practical joking or playful acts which at times result in an injury. Such injuries are said to be an anticipated risk of the employment and are compensable in almost every jurisdiction, particularly where the injured employee is not a participant.4
Worse, even if the employer is not ultimately held liable for damages to an offended and/or injured employee, it is the employer that bears the brunt of resolving the workplace conflicts, dealing with performance issues arising out of the problem, the costs of having to recruit and train replacements due to disgruntled employees leaving, or injured employees who can no longer perform their job, or having to pay the defense costs involved in claims, even if the employer ultimately "wins" the lawsuit.5
Conversely, if an employer does take strong action, that employer is viewed as overbearing and joyless. This employer potentially faces increased costs from high turnover and low morale. In addition, if everything is barred, then when there is an incident, the participants, supervisors, and owners may be sued personally because such conduct might not be within the course and scope of employment so as to fall within the workers’ compensation preemption.6
As to the many employers who have sought to minimize their risk simply by prohibiting pranks and practical jokes in the workplace, realistically, whether or not it is a laudable goal, it is simply impossible.7 "Employees do not work in a vacuum; they are generally involved in interpersonal relationships with other workers [and] those relationships can be less than idyllic."8 Almost 85 years ago, Judge Cardozo wrote:
Whatever men and boys will do …. it was ‘but natural to expect them to deport themselves as young men and boys, replete with activities of life and health. For workmen … to indulge in a moment’s diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor.’9
Another court ruled "that it is not to be supposed that a crew of men could be obtained unless some of them during working hours would play practical jokes on their fellow-workmen, especially if such men were red-blooded Americans."10
The issue then is not really whether to ban all jokes and pranks, but to determine where to draw the line, to seek to prevent it from being crossed, and then when to take appropriate action when the line is crossed. Although not perfect, one such solution would be to modify a rule prohibiting all "horseplay" to a rule that prohibits "potentially harmful or offensive workplace pranks or jokes."
In considering the application of this line, the following factors must be kept in mind:
In the decades that Lucy has been pulling the football away from Charlie Brown, our standards, and the laws that enforce those standards, have changed. One hundred and eighteen years ago the Illinois Supreme Court ruled that:
No one of any refined sensibilities will ever practice a "practical joke" upon or relate one concerning his friend. It ought to me remembered that anger dwells nearby where ridicule enters, and wounds the sensibilities, and his friend is either estranged or made angry by the reckless disregard of his feelings.11
Today, playing practical jokes upon total strangers is incredibly dangerous. Instead, the wiser choice for the prankster is to be 100 percent sure of his or her victim and how that person will respond, and that assurance can only exist if the victim is close to the prankster.12
This change in societal norms did not need 100 years to occur. Those who were employed in the workplace just a couple of decades ago may remember some of the antics that occurred at the expense of female coworkers. No one ever discussed the concept of sexual harassment or a hostile work environment. Yet, just a couple of years later, the U.S. Supreme Court formally recognized the theory as a form of sex discrimination,13 barred by the Civil Rights Act of 1964.14
Unfortunately, whether in terms of years, decades or centuries, people do not change in lock-step – some are a bit behind the curve. Simply because conduct was common and tolerated once, does not mean that it is appropriate today.15
Employees are often hurt (physically or psychologically) through pranks that involve physical contact. Some of these sound weird, such as an employee who died when compressed air from an air hose forced air into a bodily orifice.16 Others seem fantastic, such as an employee who required surgery to correct neurological problems resulting from the Company president giving him a light shock as a prank.17 It does not matter how slight, any physical contact is inappropriate because one simply cannot accurately evaluate the consequence.18 Nor does it matter if the contact is personal. For example, loosening the bolts on a bathroom fixture so that water will spray on the victim can be a major problem.19
Any conduct that threatens physical contact or harm is unacceptable.20 It does not matter whether the prankster intended harm, or even intended a threat. What is important is whether the message was threatening to the particular individual, and then to an objective judge or jury.
Threats do not always come in the form of a direct or a face to face confrontation. For example, in one case, an employee used a noose and a statue of Michael Jordan in what he characterized as a "practical joke" toward a co-worker who was a New York Knicks fan.21 To three different African American employees who happened to see it, however, the noose message was far different.22 A noose is never appropriate in the workplace.
However, not every symbol has a commonly understood meaning. For instance, in Figueroa v. City of New York,23 an employee brought a sex discrimination claim when "someone placed rotten fish under the seat of her electric broom" and she contended "that this connotes an unclean and unchaste woman and therefore gives rise to an inference of gender bias." The court disagreed.
This incident, though it does carry the connotation of being dirty and unclean, was a practical joke – albeit harsh – that has been used on people of both genders, and different races. For example, in Jones v. New York City Dep’t of Correction, a dead fish was placed on the desk of an African American male, which he alleged was motivated by his race. 2001 U.S. Dist. LEXIS 2669, No. 99 Civ. 10031, 2001 WL 262844, at *2 (S.D.N.Y. Mar. 15, 2001). In the movie The Godfather (Paramount Pictures 1980), a central character receives a package with a dead fish accompanied by a note that reads, "Luca Brasi sleeps with the fishes," i.e., Luca Brasi has been murdered and dumped into a river….24
Thus, the issue is not simply how the individual perceives the symbol, but how he or she reasonably perceives the symbol under those circumstances, and whether there are other reasonable explanations.
Any prank that involves ingesting any unwelcome or noxious substance, whether through food, drink, odor, or otherwise, is too touchy to try.25
Any joke that is likely to cause the "victim" to react physically may cause harm. For instance, throwing a firecracker into an occupied bathroom stall may seem funny, but only to the thrower.26 Likewise, the old, ‘pull the seat out from under the victim, jokes,’ can create problems and just are not funny anymore.27
If the joke is likely to cause harm to anyone’s property (other than the prankster’s), the owner may not appreciate the humor, no matter how slight the harm or how inexpensive the property.28
Invariably, some people will be the target of more practical jokes than others. For example, in Kindred v. Western Transportation Co.,29 one of the employee’s complaints was that a leadman had waived a dead rat in front of his face, and that he believed that it was because of his race. The court disagreed.
Of course, whenever practical jokes are traded, some individuals get more than their share. I can well imagine how a victim might mistake innocent but clumsy humor for something more sinister. But the testimony of other employees in the pallet shop convinces me that practical joking is engaged in by all employees, that it was not focused upon a particular employee or race, and that the jokes themselves were devoid of racial content.30
Just as in the Kindred case, there are often entirely innocent explanations for this differential treatment, such as regular proximity to the hoaxer, whether there is a good relationship between the hoaxer and the "victim," whether the "victim" can take a joke, and many more. However, there is a problem when a protected status (age, disability, gender, race, national origin, etc.) is the basis for victim selection.31
Different Frequency Based Upon Protected Status
Simply determining that everyone in the workplace has been a target of practical jokes may not be an adequate defense to a claim of disparate treatment. The issue is not just who has been targeted, but how frequently. If someone in a protected category is targeted more frequently than others, and if the increased frequency is based upon that protected category, the employer may ultimately become the target of a lawsuit.32
Direct Correlation to Protected Categories
Even if the victims are not selected based upon a protected status, conduct that has any relation to a protected status may create liability. For instance, giving an older employee a magnifying glass may be cute to co-workers but is not funny to someone who was just criticized for his job performance.
An individual’s job or professional reputation is not an appropriate topic for practical jokes, especially those that suggest incompetence.33
Doing something that interferes with the performance of one’s job, such as sending an employee on a "snipe hunt" in the rain, is likely to cause the prankster to be out in the cold.
Although common among stand-up comics, jokes about height, weight, breast-size, clothing, or any other physical attributes are out of bounds in the workplace.
False Reports of Injury to Family
One of the seminal theories of allowing recovery for intentional infliction of emotional distress is a case where a woman was falsely told, as a practical joke, that her husband had broken both legs in an accident.34 Jokes about family health, safety, security, are simply not appropriate.
Some "humor" is just too crass for adult participation. For instance, in Rodgers v. Bruno’s, Inc.,35 the employee fell and hit her head while running from a facsimile of a man that had been placed on a toilet seat in the ladies’ restroom as a practical joke. As a result of this incident, she claimed to suffer irritable bowel syndrome, psychic trauma, inability to sleep and the need to urinate often, and accordingly, she claimed that she could not continue working. There is a "fine line between outrageously funny humor and really bad taste;"36 and workplace humor must be on the right side of that line.
Weapons of Any Kind
Although it should not need to be stated, weapons37 and work only mix for law enforcement and the military, and even those individuals should not use them in play with one another.
Finally, one must evaluate the effect that the prank has on the workplace. For instance, if something happens between co-worker friends, off duty, and off premises, employers may be prohibited from taking any action, even if the prank strains workplace relationships. On the other hand, even an off-duty employee who arranges a newspaper ad selling his supervisor’s car, giving the supervisor’s home phone number with instructions to call in the late evening, is likely to cause major angst to the prankster.
Pranksterism is a Coed Sport
Finally, pranksterism is not just a male activity – Lucy has been pulling the football away from Charlie Brown for more than fifty years. In other words, some of the best artisans are women, and employers would be wise to remember this fact.
With all these limitations, one may wonder what remains? The answer - imagination!
1 Coleman v. AMTRAK, 1995 U.S. Dist. LEXIS 7770, No. 94-4526 (E.D. Pa. 1995) (in a case involving employee injury during a practical joke, employer’s motion for summary judgment was denied based upon evidence that "practical jokes and horseplay at the facility were not uncommon" and therefore, there was "enough evidence to raise a jury question as to whether the railroad exercised reasonable care, given what was reasonably foreseeable, to furnish Plaintiff with a safe workplace." Id. at *6-7.
2 In Rausch v. Pocatello Lumber Co., Inc., 135 Idaho 80, 84, 14 P.3d 1074, 1078 (2000), the plaintiff was injured when a coworker pulled his chair out from under him and he brought a respondeat superior claim against the employer. The court held:
We find that relatively few courts have addressed whether pranks or horseplay at the workplace fall within the scope of the prankster’s employment. Those jurisdictions that have considered the issue appear to be uniform in holding that if the prank or play is itself a part of the employee’s duties or could be viewed as a means, even if ill-advised, of advancing the employer’s interests, the act will be deemed within the scope of employment; but if the prank is purely a personal act for personal motives or whims and could in no way be said to be serving the employer, then the prank is outside the scope of employment."
3 In Deal v. Northwood Children’s Home Society, Inc., 608 N.W.2d 922 (Minn. App. 2000), two employees were driving a group of children to a park on a day with the wind chill measuring thirty degrees below zero. The driver stopped and told the children to walk the rest of the way to the park, as a joke, and drove a short ways away, reportedly thinking that the children would chase after the van. Instead, the children ran into the woods, toward the park that was five miles away. The plaintiff was not found for five hours.
4 Dublin Garment Co., Inc. v. Jones, 2 Va. App. 165, 166, 342 S.E.2d 638 (1986) (employer liable for injury to employee when coworker "touched both shoulders from behind, pushing her forward and jerking her back with sufficient force to buckle her knees," causing cervical strain and five months off work).
5 For instance, in Bradford v. Monroe-Tufline Manufacturing Co., 2000 U.S. Dist. LEXIS 4565, 10 Am. Disabilities Cas. (BNA) 1054 (N.D. Miss. 2000), an employee had been off work due to a back injury. When he returned, to work, his coworkers played a practical joke on him by falsely reporting to the plant manager that the plaintiff had hoisted a coworker onto his back and carried him around. When the plant manager confronted the formerly injured employee, the employee became upset and there was a confrontation between him and his coworkers. The plant manager ordered all of them to return to work and the jokesters complied. The plaintiff was still angry and "apparently failed to comply to [the plant manager’s] satisfaction" and he was then fired. Id. at *2. See also Rodgers v. Bruno’s, Inc., 554 So. 2d 1034 (Al. 1989) (affirming judgment for employer in case where employee fell and hit her head while running from facsimile of a man that had been placed on a toilet seat in the ladies’ restroom as a practical joke).
6 See, E.g., Murray v. Industrial Comm’n, 163 Ill. App. 3d 841, 516 N.E.2d 1039, (3d Dist. 1987); Black v. City and County of Honolulu, 112 F. Supp. 2d 1041 (D. Ha. 2000); Oliva v. Heath, 35 Cal. App. 4th 926, 41 Cal. Rptr. 2d 613 (1995).
7 Noffsinger v. State Accident Ins Fund Corp., 80 Ore. App. 640, 649, 723 P.2d 358, 364 (1986) ("We are persuaded that horseplay at the workplace is so commonplace that it is also within the ‘scope of employment…’").
8 Rogers v. SAIF, 289 Ore. 633, 643, 616 P.2d 485 (1980).
9 Noffsinger v. State Accident Ins. Fund Corp., 80 Ore. App. 640, 649, 723 P.2d 358, 363-4 (1986), quoting, Matter of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 471-73, 128 N.E. 711 (1920).
10 Noffsinger v. State Accident Ins. Fund Corp., 80 Ore. App. 640, 648, 723 P.2d 358, 363 (1986), quoting, Stark v. State Industrial Acc. Comm’n., 103 Or. 80, 98-202, 204 P. 151 (1922).
11 Sharp v. Sharp, 116 Ill. 509, 515, 6 N.E.2d 15, 18 (1886).
12 Macks, How to Be Funny, p. 177 (Simon & Schuster, 2003).
13 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
14 42 U.S.C. 2000e et seq.
15 Macks, How To Be Funny, p. 176 (Simon & Schuster, 2003) ("’Don’t try to be Don Rickles. Even Don can’t get away with it anymore’").
16 Kirby v. Louisville & National Railroad Co., 187 Ala. 443, 65 So. 358 (1914).
17 Caudle v. Betts, 512 So. 2d 389 (La. 1987).
18 Noffsinger v. State Accident Ins Fund Corp., 80 Ore. App. 640, 723 P.2d 358 (1986) (conduct included throwing food and wood chips at the employee).
19 E.g., Coleman v. AMTRAK, 1995 U.S. Dist. LEXIS 7770, No. 94-4526 (E.D. Pa. 1995).
20 See, E.g., In Re Rothenberg, 108 Ill. 2d 313, 484 N.E.2d 289 (1989) (disbarred attorney’s petition for reinstatement denied where the petitioner twice had men call [the victim] and threaten his life" in what was "characterized as a ‘stupid practical joke’").
21 Como v. O’Neill, 2002 U.S. Dist. LEXIS 23314, No. 02 Civ. 0985 (HB) (S.D. N.Y. 2002).
22 2002 U.S. Dist. LEXIS 23314 at *2-3.
23 2002 U.S. Dist. LEXIS 18340, 00 Civ. 7559 (SAS) (S.D. N.Y. 2002).
24 2002 U.S. Dist. LEXIS 18340 at *20.
25 Noffsinger v. State Accident Ins Fund Corp., 80 Ore. App. 640, 723 P.2d 358 (1986) (putting crab parts in space heater).
26 Coleman v. AMTRAK, 1995 U.S. Dist. LEXIS 7770, No. 94-4526 (E.D. Pa. 1995).
27 Sanford v. Brasher, 549 So. 2d 29 (Al. 1989) (employee injured when coworker pulled stool away when she stood up, and when she sat down where stool had been, she fell and injured her head).
28 Noffsinger v. State Accident Ins Fund Corp., 80 Ore. App. 640, 723 P.2d 358 (1986) (pranks included putting firecrackers in space heater so that it exploded while plaintiff was warming his hands).
29 1980 U.S. Dist. LEXIS 14196, 30 Fair Empl. Prac. Cas. (BNA) 500, 24 Empl. Prac. Dec. (CCH) P31,222 (D. Or. 1980).
30 1980 U.S. Dist. LEXIS 14196 at *60.
31 E.g., Butler v. Coral Volkswagen, Inc., 629 F. Supp. 1034 (S.D. Fl. 1986) (entering judgment for employee who was the victim of racial jokes from coworkers and management).
32 E.g., Farrington v. Bath Iron Works Corp., 2003 U.S. Dist. Lexis 193, 14 Am. Disabilities Cas. (BNA) 1708 (D. Me. 2003) (employer can be held liable under the Americans with Disabilities Act where coworkers mistreated employee who had been diagnosed as mildly mentally retarded by playing more jokes upon him than anyone else, along with other forms of abusive treatment).
33 Bradford v. Monroe-Tufline Manufacturing Co., 2000 U.S. Dist. LEXIS 4565, 10 Am. Disabilities Cas. (BNA) 1054 (N.D. Miss. 2000), an employee had been off work due to a back injury. When he returned, to work, his coworkers played a practical joke on him by falsely reporting to the plant manager that the plaintiff had hoisted a coworker onto his back and carried him around, and when the plant manager threatened to fire the "victim" for this physical activity so soon after a back surgery, the "victim" became so agitated that he became insubordinate and was discharged. The pranksters were not insubordinate and were disciplined, but not discharged.
34 Waldon v. Covington, 415 A.2d 1070, 1077 (D.C. App. 1980), quoting, Wilkinson v. Downton, 2 Q.B.D. 57 (1897).
35 554 So. 2d 1034 (Al. 1989).
36 Macks, How To Be Funny, p. 177 (Simon & Schuster, 2003).
37 Citizen v. Daigle and Brother, Inc., 418 So. 2d 598 (La. 1982) (employee shot with a pellet from an "empty" air rifle).
Jeffrey S. Fowler is the current chair of the DCBA Labor and Employment Committee. He attended the University of Houston - Clear Lake, for his bachelor’s degree and received his J.D. at John Marshall, in Chicago. Jeff is a Partner at Laner, Muchin, Dombrow, Becker, Levin & Tominberg, which concentrates exclusively in representing employers in labor, employment, employee benefits and employment immigration matters.