Since the #MeToo movement began some employers have embraced a Zero Tolerance approach to sexual harassment – get caught doing it and you are fired. Some experts hold that this policy is too extreme and can be counterproductive.
“Zero tolerance is too blunt an instrument, and it may even increase bad behavior,” warns Robin Shea, partner in the law firm of Constangy Brooks Smith & Prophete LLP.
“By all means prohibit harassment, dishonesty and violence (and other bad acts), but don’t have zero tolerance policies,” she advises.
Chai Feldblum, an Equal Employment Opportunity Commission member, says the same thing. A Zero Tolerance policy “will not only be correctly perceived as an unfair system, but it might also chill reporting. A lot of people don’t want their co-worker to be fired, they just want the conduct to stop,” she says.
“A lot of people like to use the term Zero Tolerance policy,” Feldblum adds. “What we like about that term is that it communicates that there will be Zero Tolerance for any form of unwelcome behavior in the workplace. The whole point is that you’re nipping bad behavior in the bud. An employee should understand that it does not mean that every type of conduct results in the same consequence, for example, termination.”
Shea agrees but would go further, believing zero-tolerance policies should be avoided in the context of policies that deal with workplace violence or any other type of employee misconduct.
By creating Zero Tolerance for violations of workplace policies, you are telling employees that certain behaviors will automatically result in firing every time they are violated, she notes. “Yes, harassment, threats, violent behavior and other misconduct should not be tolerated, but you don’t have to go nuclear in every case,” Shea says.
Other attorneys also agree that Zero Tolerance for sexual harassment should only mean that your company leadership and culture do not permit it in any form, not that termination will be the answer to every reported incident.
Take the example of an employee who has been with your firm for many years and has a good record. This person tells a relatively innocuous off-color joke to a couple of co-workers, and one later complains. “Would you fire the employee who told the joke? I wouldn’t,” Shea says.
If co-workers are afraid that the employee who made a little joke in bad taste is going to get fired, they probably won’t say a word about it. But if nothing is done, there’s a chance that he may begin to feel free to tell more inappropriate jokes.
“The ‘innocuous’ inappropriate jokes may even escalate to obscene jokes, told to a wider circle of employees. And next thing you know, you have a real mess on your hands,” Shea points out.
This also can be the result if management starts “pulling its punches” when deciding sexual harassment allegations, and refuses to recognize bad behavior because the consequence is all out of proportion to the violation.
If you must call your policy Zero Tolerance, Shea recommends that you to make it clear that all allegations of bad behavior will be thoroughly investigated – which also means that you won’t automatically assume the accused is guilty.
In addition, if the accusations are confirmed, state that the employee “will be subject to disciplinary action up to and including termination of employment, depending on the circumstances and the severity of the conduct, as well as other factors.”
Shea concludes, “A policy like this will communicate to employees that you will not use an atomic bomb to kill a gnat.”