There’s apparently a bit of a brouhaha in Wales, we wrote on August 31st — the former City Manager of Cardiff was caught sending racist text messages.  An article in WalesOnline reported on this story and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”

We asked the same question in an earlier post.

We received a number of good comments from around the world on this:

Bernie Althofer, an HR professional from Brisbane, Australia:

“Some organisations have managed to link their social media policy to their workplace bullying policy and associated Codes of Conduct etc.

At the same time, they have provided some ‘once only training’ without realising or understanding that the current field in relation to counterproductive behaviours i.e. bullying, harassment etc is dynamic and constantly changing. In fact, I would go so far as to say that the changes are occurring so rapidly that organisations and individuals are not able to keep ahead of the pack.”

Rebecca Foreman, Director of Operations at CMP Resolutions, in Bassingbourn, Cambridgeshire, UK:

“If you think about the phrase “where is the line?” in our Anti-Banter training we actually draw the line and ask people to talk about different words/comments/behaviours and where that line comes….what is interesting is the realisation that the line is NOT FIXED!   It moves depending on where, who, why how and what….You can say one thing to one group of people and be fine but then said the same the thing to a different group of people in similar circumstances and somehow have ‘crossed’ the line.

The advice in the article is sound….think about what you are saying, connect your brain to your mouth and if in doubt, check it out or don’t say it!

And by the way – LOVE the word Brouhaha! It is not used nearly enough!”

Pete Jones, Bias Psychologist in Sheffield, UK:

“I have been trying to run a study on the impact of ‘jokes’ and ‘banter’ for some time. I just need to find the time as I think this is an important area where the views are contrary; one is that jokes and some banter indicates hidden biases and are reinforced by banter, and the opposite that ‘it’s just a joke’ and that the conscious recognises that and can remain fair. As I work mainly in the unconscious domain it won’t surprise people that I have an unconscious take on jokes and banter which is that ‘the unconscious does not have a sense of humour’. It simple wires what it sees and hears. It’s not being politically correct, it is being neurologically correct.

With the MSc students starting soon it is a study I want to do this year to put some evidence on the table either way.”

Marc Brenman, Instructor at Morgan State University, Olympia, WA:

“In regard to this in the article, attorney Darwin Gray discusses this issue, and it is interesting that his counsel could be given in the US unedited. His advice as reported is printed below.

“There is no hard and fast rule, and it’s a very fine line between “banter” and discriminatory/potentially unlawful comments. However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.”

A few points should be borne in mind.

First, the UK’s Equality Act is under fire and in the process of being watered down.

Second, the UK doesn’t have freedom of speech protections like the US does, but does have much stronger libel and slander protections.

Third, when “bad” comments are criminalized, the result can be “hate speech” laws, which, in the US, generally add to an existing criminal violation and don’t stand by themselves. Prosecutors use the laws relatively little, in part because of likely juror offense at creating “thought crimes.” In the US, we pride ourselves on freedom of thought. In some other countries, like Canada and Germany, for example, Holocaust denial and Nazi manifestations are illegal.

Fourth, while certain types of discrimination don’t need to show an adverse effect (like some forms of sexual harassment), it sure does help to prove a violation of law to have a real live injured party, rather than just an theoretically injured or offended party.

So a joke by itself, with nothing else supporting, like harm or intent to harm, isn’t likely to create much of a legal violation. It can be condemned as in bad taste, but we’re on thin ice when we base legal judgments on taste.”