Zero Tolerance Policies in the Workplace

By Amy Wees

  1. 1.     Definitions of zero tolerance policy:
  • The policy or practice of not tolerating undesirable behavior, such as violence or illegal drug use, especially in the automatic imposition of severe penalties for first offenses.
  • any policy that allows no exception; “a zero-tolerance policy toward pedophile priests”
    wordnet.princeton.edu/perl/webwn
  1. 2.     Examples of zero tolerance policies in the workplace:

March 29, 2005

Firms Adopt Zero-Tolerance Policies on Ethical Breaches

http://hr.blr.com/news.aspx?id=10944

  • A growing number of companies are terminating employees over perceived violations of their ethical standards
  • many companies have adopted a zero-tolerance policy because of the new regulations and scrutiny that followed in the wake of major corporate scandals, including those of Enron and WorldCom
  • companies are cracking down on both business and personal behavior they believe will hurt the company.
  • example of Boeing, which forced chief executive Harry C. Stonecipher to resign after he admitted to having an affair with a female executive at the company
  • Bank of America, for example, terminated Andrew Susser after he compiled a research report on the casino and lodging industry that contained an image the company deemed inappropriate. In the image, Susser’s face was superimposed over the body of a woman in a cocktail-party dress, being carried over the threshold
  • companies are stepping up their training efforts on ethics. Citibank has created a mandatory online training program on ethics for all employees
  1. 3.     What is harassment as defined in a court of law?

A.  The Formal Definition of “Harassment”

The first place to look in determining the scope of harassment law, of course, is the legal definition of “harassment.”  Speech can be punished as workplace harassment if it’s

  • “severe or pervasive” enough to
  • create a “hostile or abusive work environment”
  • based on race, religion, sex, national origin, 1 age, disability (including obesity), 2 military membership or veteran status, 3 or, in some jurisdictions, sexual orientation, marital status, 4 transsexualism or cross-dressing, 5 political affiliation, 6 criminal record, 7 prior psychiatric treatment, 8 occupation, 9 citizenship status, 10 personal appearance, 11 “matriculation,” 12 tobacco use outside work, 13 Appalachian origin, 14 receipt of public assistance, 15 or dishonorable discharge from the military 16
  • for the plaintiff and for a reasonable person.

Note what the definition does not require.  It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements.  It does not require that the speech be profanity or pornography, which some have considered “low value.” 17  Under the definition, it is eminently possible for political, religious, or social commentary, or “legitimate” art, to be punished. 18

“David Duke for President” posters, after all, might well be quite offensive to many reasonable people based on their race, religion, or national origin, and may create a hostile environment; 19 likewise for confederate insignia. 20  This would be even more true of bigoted or insensitive remarks about minority or female political candidates. 21  Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics, 22 or criticisms of feminism as creating a hostile environment for women. 23  A reasonable person who believes that pinups “encourag[e] men to view [women] as sex objects” 24 might say something like the following, even about classical paintings:

I personally find “art” in any form whether it be a painting, a Greek statue or a picture out of Playboy which displays genitals, buttocks, and/or nipples of the human body, to be pornographic and, in this instance, very offensive and degrading to me as a woman.

Even if I wanted to personally take time to appreciate this kind of “art,” I reserve the right for that to be my choice and to not have it thrust in my face on my way into a meeting with my superiors, most of whom are men. 25

  1. 4.     Our company will have a zero-tolerance policy against harassment, what does this mean?
  • Every employee will receive mandatory annual training regarding the definition of harassment, sexual or otherwise, and how it applies to the workplace environment we work in

 

  • Next every employee will be required to sign a form of understanding after completion of the training that they understand:
  1. There is a zero tolerance policy against harassment in any form
  2. They are free to report instances of harassment to management or human resources without fear of reprisal
  3. After investigation, if the harasser is found to have violated the policy they will be terminated without further pay.
  • Finally, to ensure that the zero-tolerance policy is understood and properly followed by management personnel, management will receive annual training on a management level to learn to properly handle reports of harassment in the workplace to include:
  1. how to conduct a fair and thorough investigation
  2. how to help the reporter to remain anonymous and keep the workplace a safe and harassment free environment until the investigation is complete
  3. the terms of the zero-tolerance policy and the proper termination requirements, if necessary
  4. follow-up treatment options for victims and those wrongfully accused, if necessary
  5. reducing gossip and rumors in the workplace due to reports

 

References:

Firms Adopt Zero-tolerance policies on ethical breaches. HR.BLR.COM, HR BLOG. Retrieved March 15, 2009, from http://hr.blr.com/news.aspx?id=10944

 

Vohlokh, E. (1997). What Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 Geo. L.J. 627 (1997).  Retrieved March 15, 2009, from http://www.law.ucla.edu/volokh/harass/BREADTH.HTM#IA

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