I’ve said before and I’ll say it again. Zero-tolerance policies are a bad idea when addressing sexual harassment complaints. In fact, they shouldn’t even apply to complaints about discrimination or workplace infractions. Although zero-tolerance policies convey the impression that an employer is taking a hard line stand against conduct it wants to discourage or eliminate, the reality is a little more complicated, just like the workplace.
For example, last year when New York State issued an initial draft of its model sexual harassment prevention policy, it initially contained statements that sexual harassment and retaliation for engaging in protected activity were subject to a zero-tolerance policy. These statements were removed in the final version, as they should have been.
Also, the Equal Employment Opportunity Commission (EEOC) disfavors zero-tolerance policies, viewing them as a “one-size-fits-all” approach to handling sexual harassment complaints. Last year, Chai Feldblum, who was then an EEOC Commissioner, expressed concerns that a zero-tolerance policy could potentially “chill reporting.” She expressed similar concerns in 2016 in her report issued in connection with the EEOC’s Select Task Force on the Study of Harassment in the Workplace.
The purpose of reporting perceived sexual harassment or discrimination is to make it stop. An employee might not want to report harassment or discrimination if the result will be that a co-worker automatically gets fired. Not reporting the conduct, however, makes it more likely that it will continue. The bottom line is that some acts of harassment are so severe that termination is the only appropriate response. However, termination might not be appropriate, for example, for an employee who has never had any problems, but was overheard telling an inappropriate joke.
The same applies to zero-tolerance statements in workplace violence prevention policies. The threat of terminating an offender might prevent complaints, which would result in an ineffective policy. That’s not the result we want.
Employers should comb their policies to make sure that they don’t contain absolute statements that imply termination for every offense. Policy violations, including those involving sexual harassment, must be considered on a case-by-case basis following an appropriate investigation. As always, Murtha’s labor and employment group is available to assist you in reviewing and revising your policies as appropriate to ensure that they comply with law and are effective, as well as conducting workplace investigations.