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What Does Zero Tolerance Actually Mean?

Fair Practice: Know How "Zero Tolerance" is Understood in Your Agency

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By: Carl Moore

January 29, 2013 | Fair Practice

I’ve been involved in developing harassment prevention policies and training for federal agencies for almost 35 years. Today, more than 20 years since “Tailhook,” the Clarence Thomas hearings, and the Robert Packwood hearings, I am pleased to hear from classroom participants about situations in which management has taken quick action to stop relatively serious disrespectful behavior. I am still amazed at the stories about people being seriously disciplined, even terminated from employment, for relatively minor incidents. Often I discover on further inquiry that the agency expressed its policy for harassment prevention as “zero tolerance.” It has been my experience that sometimes this term is misunderstood, even by EEO Specialists, much less the front line supervisors, leading to unfortunate outcomes. A recent case underlines the difficulties this can cause for the agency.

The Situation

A university professor had been counseled about not using terms of endearment such as “Sweetie” when addressing female students and while giving them a gentle nudge under the chin (referred to in the case as “chucking them under the chin”). He was counseled to absolutely stop treating female students in this fashion.

Subsequently, he addressed his Department Head as “Sweetie” and “chucked her under the chin.” At the time, she said nothing to him about it, though she later reported that she had given him a “stony look.” Some days later, he came into the faculty lounge while the same Department Head was interviewing a prospective incoming freshman and her parents and he repeated the comment and behavior in the presence of the prospective freshman and her parents.

Rather than initiate discipline as his superior, the Department Head filed an EEO complaint. Based on the complaint, the University initiated its own disciplinary proceeding and eventually terminated the employment of the professor for violating the University’s zero-tolerance sexual harassment policy. The incident in the faculty lounge was the sole basis for the termination action. The professor appealed to a faculty review panel and then to the Board of Trustees and both bodies unanimously upheld his termination. The federal district court also dismissed his law suit.

The Decision

The appeals court first noted that this was only the second case it found in the nation where a supervisor alleged harassment by a subordinate. This is a fascinating topic we’ll explore in the next issue.

To the point of our discussion here, the court noted that the termination action was based solely on this one incident in the faculty lounge and that the violation was of the sexual harassment policy. The university policy statement defining harassment used the same kinds of examples that federal agencies typically use to describe violations of their harassment prevention policy. The court concluded that with a one-time event, the employer had to show that the conduct was “severe and pervasive,” which the court said with a one-time event meant “assault rather than trivial behavior;” the former being a serious offense and the latter “indicating a moral lapse, potentially worthy of disciplinary warnings, or other [lesser] penalties.” The court specifically noted that this is the problem with “zero-tolerance policies such as the one here.” (Haegert v. University of Evansville, 955 N.E.2d 753 (Ind. Ct. App. 2011))

The Bottom Line

If your agency has expressed its harassment prevention policy as a “Zero Tolerance” policy, be certain that supervisors, managers, and HR and EEO Specialists all understand what the “Zero Tolerance” represents. If it means that we will not tolerate behavior that might violate the law and that we will terminate anyone who engages in such serious misconduct, then everyone also needs to understand the elements of the law of “hostile environment harassment.”

If “zero tolerance” means that we will not overlook more trivial violations of the agency’s demand for respect in the workplace, then it is important that everyone in management and their advisers understand that this does not mean we seriously discipline any violation of workplace etiquette. Rather, it means that we do not ignore even childish, immature, or unprofessional workplace behavior and we use appropriate progressive discipline, including informal discipline and coaching and counseling, for such behavior. In turn, when a violator has been warned and repeats the behavior or when behavior truly approaches a violation of the law, those in management need to understand the gravity of the situation and how to initiate appropriate serious disciplinary action, including termination of employment.

About the Author

Carl D Moore, Esq. was a senior consultant with NewPoint Strategies and a contributing author to this blog until his passing in 2013. He was also the author of TRUST: Short-Circuit the Hardwiring! – a book about EEO law and building trusting workplace relationships in order to avoid complaints, grievances, and law suits.

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