Do unreasonable behavioural standards change when it’s your job to be a shock jock?
Say, just for the sake of argument, a radio station employs two high-profile show hosts for a weekday program popular for its lewd and gossipy content, live pranks, provocative interviews, and the male host’s frank and often belittling or obscene commentary.
One morning, after being disparaged for seven minutes on-air for her work ethic and performance, the female host says she can no longer work with her partner of 22 years, and the male host is suspended for “serious misconduct” by station owners.
Amid the deluge of hot takes and listener tears (and Kyle’s reported apology and Jackie O’s denial she resigned), it is worth asking: what are the implications for a complaint about sledging that when it is this characteristic that is key to the employee’s role and even the reason he was hired?
Before dismissing this high-profile event as exceptional, it’s worth considering the ways workplace culture can influence the “norms” of a typical conversation between employees.
Other potential scenarios could include:
- Insulting or threatening comments by a waitress towards a diner in a themed restaurant known for “bitchy” or “horror” service such as a Karen’s Diner or Dracula’s Restaurant;
- Detailed sexual content as part of a conversation between a customer and assistant in a department store selling a range of personal and general household items including vibrators;
- Aggression, swearing and derogatory “banter” in high-pressure environments, such as finance or trading, where such verbal tactics are used to drive competition and results (that are often rewarded with high commissions);
- Graphic morbid commentary or “gallows humour” among employees in workplaces such as an emergency room or crime scene investigation unit.
Each of these scenarios highlights different grey areas where legal and ethical boundaries intersect with cultural variables associated with different industries.
Blurring of professional boundaries due to an industry’s inherent working conditions means conduct that would likely be a “firing offence” in a school could be considered “part of the job” at a hedge fund, theatre restaurant or ER room.
Given this natural variation, can “serious misconduct” vary depending on workplace culture or the nature of certain occupations? Does the nature of the job “waive” the right to a professional environment?
The short answer
No.
Even in “edgy” or “intimate” industries, employment law generally maintains that the workplace must remain free from discrimination, bullying and harassment. However, the “context” of the job may create a higher threshold for what is considered unreasonable.
The “expected environment” vs. the law
In considering a complaint related to any of the above scenarios, the employer must distinguish between content (the product, show or other primary work activity) and conduct (how employees are treated).
For the retailer, for example, selling a vibrator requires discussing its function – this is work-related “content.” But if a manager uses that product as a prop to make a suggestive comment about an employee’s body, that is “conduct” and likely sexual harassment.
In the case of the radio station, the host is paid to be provocative. But “shock jock” status is not a license to harass co-workers, subordinates, or guests in a way that violates human rights or safety laws.
The “reasonable person” test
Tribunals or courts ask: Would a reasonable person in this specific context find the comment offensive or belittling?
In a standard office environment, a joke about sex, or mocking or insulting colleagues and customers, is high-risk.
In a radio booth for a lewd show, a joke about sex or belittling comments might be seen as “part of the creative process” – unless it is targeted, persistent, or creates a hostile environment for a specific individual.
Any power imbalance is also relevant to reasonableness, and may be decisive in potentially “serious misconduct”. If a male radio host uses his “persona” to belittle a female junior producer or a retail manager makes sexualised jokes to a teenage assistant, the “shock jock” or “wellness” context fails as a defence.
Belittling comments that target protected characteristics (such as gender, race, disability) are also unlikely to be protected by the “it’s just a joke/my on-air persona” defence.
Risks for the employer
If an employer hires a “shock jock” specifically for their “obscene” style, the employer may have a harder time claiming a complaint about that behaviour amounts to “serious misconduct” unless it breaches a specific code of conduct that was clearly defined in the contract.
Further, if the station ignores the host’s behaviour for years because it brings in ratings, but then suddenly fires them for “misconduct” following one complaint, it could be seen as unfair dismissal.
The low-down
It might seem a stretch to draw conclusions about appropriate conduct from the antics of Kyle and Jackie O, but here they are:
1.) Contractual clarity
Employers in workplaces or industries with risks like those in the above scenarios must have “carve-out” clauses. Contracts should state that while the work involves provocative content, professional boundaries regarding colleagues remain absolute.
2.) The “consent” fallacy
Just because an employee chooses to work at a lewd radio station or a shop selling adult toys or a high-pressure sales or trading environment, it does not mean they “consented” to being the target of sexualised or belittling remarks.
3.) Duty of care
The employer has a non-delegable duty to provide a safe workplace. If a “shock jock” creates a toxic culture, the station is legally liable for failing to intervene, regardless of a show’s popularity.