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Vedder Thinking | Articles Sadina Montani Authors "Zero-Tolerance Harassment Policies And The #MeToo Era" in Law360

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As published in Law360 on February 1, 2019.

For better or worse, in the era of #MeToo, the public and employees alike expect that employers will act swiftly and decisively in response to allegations of sexual harassment. And the number of high-profile men whose careers have been sidelined as a result of sexual harassment allegations has fed into a misperception that “justice” must be immediate and career-ending.

This perception is dangerous for multiple reasons. First, it is based on a fundamental misperception regarding the speed with which action can and should be taken in the wake of sexual harassment allegations. While it may seem like little time passes between an allegation of sexual harassment and the ouster of a high-profile harasser, it is much more likely that some or all of the allegations previously were known to the employer and action only was taken after the allegations became public — or that the organization was made aware of the allegations shortly before the public disclosure, but with sufficient time to conduct a prompt and thorough investigation.

Second, this perception of “justice” as immediate and career-ending does not account for the fact that the sexual harassment covered in the media is, by and large, particularly egregious. Indeed, one of the high-profile alleged harassers who first comes to mind (Harvey Weinstein) was accused of sexual assault, not only sexual harassment.

In fact, the legal definition of sexual harassment falls well short of the behavior so often described in the media. Sexual harassment that constitutes a hostile work environment includes severe or pervasive actions (verbal, visual or physical) that are unwelcome and impact an employee’s ability to perform his or her job duties. Thus, routine comments about a coworker’s body or unwelcome sexual banter likely would meet the legal definition of sexual harassment but fall short of the egregious examples of sexual harassment so often playing out in the media and resulting in an (apparent) immediate termination. This type of sexual harassment can be present even when the harasser is not a high-level executive; indeed, a hostile work environment can exist when the harasser is an equal colleague, a subordinate, a third-party partner or a client.

Quid pro quo sexual harassment, on the other hand, does require that the harasser hold a position of power over the individual harassed. This type of harassment exists when (expressly or implicitly) the harasser demands sexual favors in exchange for job advancement, benefits or protection — or retaliates against an individual for failing to acquiesce to sexual advances or demands. This type of harassment occurs less frequently in the modern workplace, but it is by no means extinct.

In instances of quid pro quo sexual harassment — which are more egregious and almost certainly also would meet the legal definition for a hostile work environment — immediate termination generally is the most prudent employment action. In addition to the significant legal risks associated with this behavior and the likely toxic impact on the workplace culture, this type of harassment evidences critical lapses in business and personal judgment on the part of the harasser.

On the other hand, the lower threshold for a hostile work environment (and the spectrum of behavior that could result in a hostile work environment) calls into question the prudence of a “zero-tolerance” anti-harassment policy as it exists in the current zeitgeist.

Just as financial improprieties and time sheet inaccuracies surely violate employer policies and likely the law, so too would unwelcome comments on a coworker’s body or sexual banter. And just as financial improprieties and time sheet inaccuracies would demand discipline, so too would unwelcome comments on a coworker’s body or sexual banter. But just as the discipline associated with financial improprieties or time sheet inaccuracies would be meted out based on the severity of the violation, so too should discipline for sexual harassment be meted out based on the severity of the actions.

Put another way, in the same way an employer might (and probably should) choose not to terminate an employee because of a single instance of a false statement on a time sheet but instead take disciplinary action targeted at ensuring the misconduct is not repeated, an employer similarly may (and probably should) choose not to terminate an employee who engages in relatively low-grade sexual harassment and instead take disciplinary action targeted at ensuring the misconduct is not repeated.

This runs contrary to the notion of a “zero-tolerance” policy in the zeitgeist. Too often, employers continue to tout vague “zero-tolerance” sexual harassment policies, even knowing full well that the expectation associated with such policies is termination for sexual harassment. This article examines “zero-tolerance” policies, as understood and presented.

What Does it Mean to Have a “Zero-Tolerance” Anti-Harassment Policy?

The underlying principle of “zero-tolerance” anti-harassment is not problematic — that is, that an employer will not tolerate harassment. Anti-harassment policies absolutely should prohibit sexual harassment and make clear that immediate and appropriate employment actions will be taken when credible allegations of sexual harassment come to light.

Nearly all employee policies governing behavior or disciplinary issues includes some variation of the phrase violation of this policy will lead to disciplinary action, up to and including termination. Look closely: Your organization’s anti-harassment policy likely includes the same language. As it should. While sexual harassment has been shown in the #MeToo era to be a scourge on the workplace that must be eradicated, its eradication will not be effectuated by the termination of every employee who has engaged in even a single instance of relatively low-grade sexual harassment.

Importantly, even the U.S. Equal Employment Opportunity Commission has opined that policies (and attitudes) that suggest a sexual harasser will be immediately fired regardless of the level of sexual harassment — or that his or her policy violations will be treated more harshly than other policy or discrimination-related dictates — cause organizations and employees more harm than good. These policies do not really ferret out sexual harassment. Instead, they chill employees’ comfort in bringing forth relatively low-grade sexual harassment complaints for fear of being labeled a “whiner” or worse.As the EEOC has described, most victims of sexual harassment do not want the harasser fired — they just want the harassment to stop. Specifically, from the EEOC’s Select Task Force, regarding “zero-tolerance” policies:

  • Finally, we have a caution to offer with regard to use of the phrase “a ‘zero tolerance’ anti-harassment policy.” We heard from several witnesses that use of the term “zero tolerance” is misleading and potentially counterproductive. Accountability requires that discipline for harassment be proportionate to the offensiveness of the conduct. For example, sexual assault or a demand for sexual favors in return for a promotion should presumably result in termination of an employee; the continued use of derogatory gender-based language after an initial warning might result in a suspension; and the first instance of telling a sexist joke may warrant a warning. Although not intended as such, the use of the term “zero tolerance” may inappropriately convey a one-size-fits-all approach, in which every instance of harassment brings the same level of discipline. This, in turn, may contribute to employee under-reporting of harassment, particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior — they simply want the harassment to stop. Thus, while it is important for employers to communicate that absolutely no harassment will be permitted in the workplace, we do not endorse the term “zero tolerance” to convey that message.1

 

Training for a Zero-Tolerance Anti-Harassment Policy

When an organization communicates that its intolerance to harassment will lead to immediate termination, it can foster a sense of unfairness in the organization. Rightly so! A single comment objectifying a coworker is a far cry from pervasive sexual comments or unwelcome physical touching.

This misplaced edict also can have the result of preventing credible reports of harassment. Victims may fear that, if they report an inappropriate but relatively minor instance of sexual harassment, the harasser will be fired. As the EEOC has warned, employees often delay reporting concerns of sexual harassment for fear of getting a colleague fired — when what they really want is simply for the harassment to stop.

When employees understand that they can and should come forward with concerns of harassment when the behavior is at a level where coaching, management and discipline short of termination is appropriate, employers are more likely to learn about harassment sooner. This is good for everyone — the employee (or employees) experiencing the sexual harassment, the employee (or employees) engaged in the sexual harassment, and the organization.

Additionally, when employees perceive that even the slightest report of sexual harassment can result in termination, those experiencing harassment also may fear heightened retaliation or feel peer pressure from their colleagues just to ignore stray instances of harassment.

Anti-harassment training can go far to correct the misplaced understanding of “zero-tolerance” policies. Thoughtful anti-harassment training should focus on supporting and maintaining a generally respectful workplace, one where bullying, unprofessionalism and (of course) harassment will not be tolerated. Trainers should emphasize for staff, managers and executives alike that the organization is interested in hearing its employees’ concerns regarding interpersonal relationships with their colleagues.

All levels of staff should understand that human resources can be a resource for coaching and offer guidance to manage issues, well short of the need to launch a formal investigation. If employees are willing to disclose to a manager or HR when they are uncomfortable with a colleague, and when employees and managers see HR as a resource for negotiating challenging interpersonal waters, the situations that often escalate to sexual harassment can be detected early and the behavior managed (short of termination).

Managing Harassers Who Are Not Terminated Is Challenging

The knee-jerk reaction to fire an alleged harasser comes with significant risks. If the allegations are not first investigated and deemed credible, the alleged harasser could have a legal claim against the employer and/or the individual who made the harassment claims. That said, there are many challenges associated with managing employees who have credibly been accused of sexual harassment.

In advance of such situations, employers would be well-served to think creatively about the host of disciplinary actions that could be used to manage an employee against whom credible allegations of harassment have been made. Appropriate disciplinary measures could include one or more of the following: mandatory coaching and training on the organization’s policies and expectations; a written warning, which would outline the behavior and describe ramifications for continued harassment; decreased management responsibilities or closer management of those responsibilities; and/or financial penalties.

Sanctions should be instituted with the goal of ensuring that the behavior does not continue, and the organization should be willing to escalate and/or reissue sanctions if the behavior continues.

Of course, in many instances, the prudent and appropriate measure will be termination. However, that is not always the case. Further, it would be foolish to pretend that recommendations for termination in response to credible allegations of harassment sometimes are not heeded by leaders in the organization.


1. https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm



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Sadina Montani

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