Pitfalls of Zero Tolerance Policies

By Lehr Middlebrooks Vreeland & Thompson, P.C.

July 31, 2018

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. She can be reached at 205.323.9275.

Zero tolerance policies are a good thing, right? Because of the many workplace misconduct scandals that have become public in recent  months, employers  are  taking  harder looks at how they handle allegations of harassment, from addressing  complaints to carrying out discipline for offenders. At first glance, zero tolerance might seem to be the easiest and most efficient  way of dealing with such a problem. And, while this may be the right way to go for your company, it is worth  looking deeper before you decide.

The first thing that should be determined is exactly what “zero  tolerance” means in your company. Will it truly be the one-size-fits-all method it sounds like? Will telling an off-color joke in the break room result in the same immediate termination that sexual assault would? Your policy needs to clearly state what conduct will not be tolerated.

Without that clear definition of what the company has zero tolerance for, employees will live in fear that they will be fired on the spot for any minor slip-up or comment that is misinterpreted by a coworker.  Having employees who will not communicate with one another is not an atmosphere that promotes productivity or longevity. It will encourage some employees not to report behavior that should be reported. They may be experiencing or witnessing behavior that should be stopped but will allow it to continue because they do not believe it to be severe enough to cost someone their job. Or they may not want to be known by coworkers as the one who ruined their friend’s career. There is always the off-chance that an employee will  have  such an  intense  personal  dislike  for  another employee that they will embellish (or lie about) that person’s conduct for the purpose of getting them fired.

EEOC’s anti-harassment task force offered some guidance in 2016 regarding zero tolerance policies. It  cautioned that the term “zero-tolerance” could be misleading and counterproductive  without  being  properly defined. It encouraged employers to have no tolerance for abusive or harassing behavior by holding employees accountable for their behavior and assuring that resultingactions are prompt and “proportionate to the offensiveness of the conduct.” And, as always, the policies must be enforced consistently.

Zero tolerance policies can, and should, recognize that all offenses are not equal – circumstances  of the alleged violation, seriousness of the allegations and histories of the individuals involved should all be considered.  As with all reports of harassment, investigations need to explore  the severity and  pervasiveness of the conduct. Even if the conduct does not rise to the level of unlawful harassment, inappropriate conduct has negative effects on the workforce. And, if it is not stopped, it can escalate to unlawful harassment.

It is important to make sure that zero tolerance policies  apply to everyone at every level of the company.  Managers and  supervisors need to understand that they are in positions of trust and leadership and will be held  accountable for their actions. When employees see their leaders acting unprofessionally or ignoring company  policies, the message they receive is that such behavior is acceptable – or encouraged – by their employers.

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