Zero tolerance of workplace harassment: Striking the right balance

Posted on September 24, 2019 by Mathew A. Parker - Also by this author

Even before the #MeToo era, workplace harassment complaints have steadily climbed.
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Even before the #MeToo era, workplace harassment complaints have steadily climbed.
Public Domain

(This was originally posted April 3, 2019.)

One of the important lessons for employers from the #MeToo movement is that their employees expect them to do more than they have in the past to prevent workplace harassment. Many employers have responded by reaffirming their commitment to “zero tolerance” of workplace harassment.

Unfortunately, sometimes these commitments to “zero tolerance” are vague and, as a result, they can fuel misperceptions about how employers actually intend to respond to misconduct. While it is critically important for employers to take a stand against workplace harassment, such misperceptions are an important reminder that employers should be mindful about how they communicate their message of “zero tolerance” to employees and how they act on it.

A Disconnect Between Perception and Reality

The Perception of 'Zero Tolerance': A One-Size-Fits-All Approach
When employees hear the recent pronouncements by employers about “zero tolerance” for workplace harassment, they tend to come to one conclusion: Every kind of workplace misconduct will be met with the exact same consequence — specifically, automatic termination. Is it prudent, however, for employers to adopt this kind of one-size-fits-all approach? Maybe.

But maybe not. There are credible arguments that such an approach actually makes it more difficult for employers to fight workplace harassment. First, it can lead to cynicism about the fairness of employers’ processes for handling complaints about misconduct. Employees want their employers to conduct fair and effective investigations of reported misconduct. Resorting to automatic termination in every circumstance could undermine those desires.

Next, it can have a chilling effect on the reporting of workplace harassment. Employees generally want offenders to be held accountable and disciplined in a manner that is appropriate under the circumstances. But when employees interpret a “zero tolerance” policy to mean that any behavior, no matter whether serious or minor, will result in automatic termination, they may do nothing about it at all. When employees do not report misconduct, offenders may start to believe that their conduct is acceptable, or even welcome, in the workplace. And, when that belief sets in, there is a big risk that the innocuous bad behavior will escalate into much more serious misconduct. Finally, management or HR may start to rationalize and sweep minor complaints under the rug to avoid the automatic termination of employees.

Nearly everyone can agree that these outcomes are less than desirable. Indeed, even the U.S. Equal Employment Opportunity Commission has noted that a literal application of “zero tolerance” in every circumstance can cause more harm than good. So, how can employers go about nipping bad behavior in the bud?

Employers should communicate to employees that they will not tolerate any kind of unwelcome conduct in the workplace.
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Employers should communicate to employees that they will not tolerate any kind of unwelcome conduct in the workplace.
Public Domain
The Reality: Striking a Balance While Maintaining 'Zero Tolerance'
There is rarely a one-size-fits-all approach to responding to complaints about workplace misconduct. To be sure, the notion of “zero tolerance” for workplace harassment is a very good one — employers should communicate to employees that they will not tolerate any kind of unwelcome conduct in the workplace. One of the goals here is to ensure that misconduct is not repeated. Of course, sometimes, the appropriate response will be automatic termination. But other times, just like with other forms of workplace misconduct, employers should strive to strike a balance — that is, they should hold employees accountable and discipline them in a manner that is proportionate to the misconduct at issue. Such an approach hardly makes employers tolerant of workplace harassment.

Consider, for example:

  • An employee tells an off-color joke to a coworker. The employee has a good record and no prior issues. Another employee overhears the joke and files a complaint. Should the employer terminate the employee who told the joke? Probably not. In this situation, the first instance of telling such a joke likely warrants a stern warning to the employee, including the warning that further misconduct could lead to more serious consequences.
  • An employee uses derogatory language toward a coworker. The employee was previously warned on one occasion about using such language. Is termination warranted now? Maybe. Alternatively, a suspension with a final warning that any further misconduct will result in termination might suffice just as well.
  • A manager demands a sexual favor in return for providing a desirable schedule or promotion. Such conduct absolutely should result in termination.

As these examples show, employers can take an action based upon the nature of the misconduct at issue. Doing so sends a message to the offender that the behavior at issue is not tolerated in the workplace and simultaneously conveys to employees that the employer is committed to creating an environment of civility and respect.

Other Ways to Show 'Zero Tolerance' for Workplace Harassment
Even before the #MeToo era, workplace harassment complaints have steadily climbed. The steady increase suggests that, unfortunately, traditional anti-harassment policies and training alone are not stopping workplace harassment from occurring. Thus, it is high-time for employers to consider expanding their approach to harassment prevention.

Employers should start to think about new and creative ways to stop workplace harassment. Those that do so likely will benefit as society’s expectations regarding the employer’s role in this process change. In addition to traditional anti-harassment policies and training, training should also revolve around:

  • The role of workplace culture
  • Implicit bias, sensitivity and bystander training
  • Management protocols for addressing employee concerns
  • Team building to foster psychological safety among employees

A prevention program built around these principles, among others, will help employers do more than just comply with the law — it will reinforce the notion that everyone plays a critical role in preventing workplace harassment (or any other kind of misconduct, for that matter) and creating a successful workplace culture. It also will empower employees with the tools to step in and stop inappropriate behaviors. Such tools will provide tremendous benefit to employers and employees in promoting ongoing awareness of and response to this challenging issue.

Mathew A. Parker is a partner with Fisher Phillips (mparker@fisherphillips.com).

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