Harassment Policies and Procedures

Anti-Harassment Policy

Every employer should have a written anti-harassment/respectful workplace policy or policies. (There are a variety of good policies, so this article will not present a “model.”) Policies may take several different forms, but all should include certain elements:

• A statement that the organization disapproves of harassment and/or other forms of abusive behavior (not “illegal” behavior);

• A definition so that employees know what the policy covers;

• A stated commitment to stop these behaviors;

• Guidance on how to raise concerns. This should let employees know that they can go to their management and also should provide an alternate designated person(s) (i.e., should specify officials other than the direct supervisor); and

• A guarantee that there will be no retaliation for those who use the policy.

The policy should be well publicized and disseminated. A number of court cases have tipped in the employers’ favor because the company had given a copy of its anti-harassment policy to each worker, posted the policy prominently, given employee training on harassment, and then enforced the policy.

Why Not Prohibit “Illegal” Harassment and Bullying in the Policy?

“Illegal” conduct has a high standard and requires fairly overt “severe or pervasive” behavior. There are many serious situations that do not rise to the level of illegal but certainly deserve correction or termination.

Some organizations have had a harassment discharge overturned in arbitration or court because their policies prohibited “illegal harassment” but the fired employee’s behavior had not risen to the truly illegal level.

Additionally, if the organization prohibits only illegal behavior, then the organization is always bordering on illegality and always on the edge of liability. Further, employees who wish to test the limits can argue that their obnoxious and abusive behaviors are not illegal, and, therefore, they are not violating the policies. They are correct! They may win any challenge to discipline for violating the policy.

Setting your own standards allows you to establish your own respectful organizational workplace culture.

A policy that prohibits only illegal behavior takes away your organization’s control of its environmental dynamics. Any organization should have the right to set its own standards, rather than have the law dictate them. Set your standards well below the illegal level. This gives your organization breathing room to identify and correct problems well before they arrive at the illegal liability level. (If it is already illegal, it’s too late—you already have liability.) Setting your own standards allows you to establish your own respectful organizational workplace culture.

Finally, prohibiting only illegal behavior is not a commitment. It indicates the organization does not care about anything but illegality and does not have an organizational commitment of its own. That is not the message that should be conveyed to employees, clients, students, and others.

Overly generous policies also can create liability, however.

In Marini v. Costco Wholesale Corp. (D. Conn., 2014), the company policy specifically stated that “corrective action will be taken regardless of whether the inappropriate conduct rises to the level of any violation of law,” and that the policy definition of harassment was “broader than as defined by law.” A former employee filed a claim with the Equal Employment Opportunity Commission (EEOC) and state EEO agency alleging disability harassment, but filed more than 300 days after the acts. These EEO cases were dismissed as being beyond the statute of limitations. However, the court ruled that the company’s “progressive policy” exceeded the scope of EEO law, and created an enforceable contract. Under state law the contract statute of limitations was six years. So the employee could still pursue the harassment case against the company.

The court also found that the company policy had no disclaimer such as: “This policy does not create legally enforceable protection beyond the protection of the background laws” (state or federal EEO laws). That sort of disclaimer would have prevented the policy from becoming an enforceable contract. One other important issue is that state and federal EEO laws often “cap” damages, but state contract law may have unlimited liability. So a contract action can be much more expensive.

Complaint Procedure

Having an anti-harassment policy does little good unless it is usable and enforced. There must be a process in place to handle complaints when people use the policy.

In 1998, the United States Supreme Court decided the sexual harassment cases of Faragher v. City of Boca Raton, Florida and Burlington Industries v. Ellerth (from Illinois). The issue was an offensive, hostile, harassing environment. Both cases were decided against employers that had anti- harassment policies. The decisions hinged on whether or not the employer had an effective anti-harassment policy and practice.

Have a Policy! Give It Out! Make Sure People Understand It!

The biggest factor in the decisions was “effective policy.” In Faragher, the written policy was not distributed to the work unit. Consequently, the harassed employees had no knowledge of how or where to raise an internal complaint. So, distribute and post the Anti-Harassment policy. And in Ellerth, the plaintiff claimed that harassment complaints had to be made to a person who reported directly to the harasser, so the policy was dead-ended at the very source of the problem.

A piece of paper may not be enough. An “effective” policy should be stated in clear language. It should be orally explained to each new employee in a way that actually reaches those who are illiterate, are not English literate, or who have cognitive disabilities.

A policy must offer more than one person to report harassment to.

The court emphasized that an effective policy and practice is one that makes it easy to report and does not “cost” the employee (i.e., does not require unpaid time or days off to deal with the process, or arbitration fees).

A policy must offer more than one person to report harassment to. Policies that make the victim go to the harassing supervisor, that supervisor’s “buddy,” or some other non-impartial party, are designed to “chill” use of the process. Clearly, it is important to offer several alternatives. The Burlington case was decided against the employer on this point. In EEOC v. Holmes & Holmes Electric (ED Utah, 2014), the court found the lack of a “bypass provision” (alternate to chain of command) made the harassment policy “unreasonable on its face.”

Any organization with more than one location should have a designated person at each location and a designated person (or persons) at the central office for reporting concerns.

Specifying to Whom Concerns Should be Reported

The policy should not advise employees (or students, or clients, or other complainants) to report concerns to their immediate supervisor. This is an error that has resulted in liability for many employers.

All supervisors should know how to recognize and respond to complaints of improper behaviors.

A line supervisor (e.g., sales manager, welding supervisor, 20-year-old “assistant floor manager”) may not have the knowledge, training, or sophistication to even recognize the issue as important. Lead workers often are given the title “Line Supervisor,” or “Assistant Paint Department Manager” with no employment authority at all (e.g., Vance v. Ball State U (US Supreme Court, 2014)). The direct supervisor often ignores, diminishes, or forgets the issue in the pressures of business, because it’s just not important to his or her daily sales or production quotas. So the issue does not get proper attention. The company is liable! The employee followed the policy, nothing was done, and the next step is the EEOC filing.

How many supervisors do you have? Some are conscientious; some are not. Multiply your chances of liability by the number of supervisors your policy entrusts to “professionally and thoroughly” handle any complaint—or even to properly recognize that it was a complaint under the policy at all.

All supervisors should be trained and held accountable for maintaining the respectful workplace. All supervisors should know how to recognize and respond to complaints of improper behavior and to promptly report such complaints to the designated managers. However, the policy also should specifically name two or more designated professional and knowledgeable positions for reporting.

What If the Employee Requests No Action Be Taken?

“Please don’t do anything” does not mean don’t do anything. In Conner v. Lancaster County (E.D., PA, 2010), a county employee was subjected to overt, sexually offensive conduct from her coworker, including chasing her and repeatedly exposing himself. She told her supervisor, but then asked him to please don’t do anything, and take no action because she was afraid of the consequences. The coworker made frequent threatening references to the gun he kept in his car. So the supervisor did nothing. The harassment continued. Several months later, the employee told the Director of Training about the ongoing incidents, but no action was taken.

The harassment continued for two years until the coworker began overtly sexually grabbing yet another woman. The employee then reported this incident, along with her own long period of harassment, to the County Executive. She was discharged two weeks later. She filed suit, but the county sought dismissal on the grounds that since the harassment had begun several years earlier, most of it was outside the statute of limitations. The court disagreed. It ruled that the harassment constituted a “continuing violation” and each hostile act was “part of a whole”; none of the incidents had to be separated out of the case. She could claim damages for the cumulative effect. The county should have acted to address the harassment on the first report. An employer cannot use “please don’t do anything” as a defense when the “don’t do anything” plea is due to the employee’s fear of violent retaliation. That sort of plea by an employee enhances the employer’s obligation to do something, and do so promptly.

Informal Process

The policy should include an informal resolution option for less serious infractions, rather than only mentioning investigation, discipline, or discharge as outcomes. Many offensive environment or work condition instances can be resolved by giving fair warning or by other informal management action. Instead of magnifying the issue and solidifying people into the defensive positions that a formal investigation and discipline process creates, informal action often resolves the issue and is much better at getting everyone back to productive work.

• An employee’s concern about the romantic advances or sexual innuendos made by a coworker often can be stopped by the direct supervisor just telling the offending person to “cut it out.”

• A complaint about an offensive pin-up or cartoon can be solved better by the supervisor simply ordering it to be removed than by creating an “investigation.”

• Concerns about racial and ethnic jokes can be resolved by management stating that these are seen as “inappropriate” for the workplace, instead of creating a formal process that labels the joke tellers as “the accused.”

The good things about an informal process are that it is quicker, friendlier, and allows people to “back off” instead of “lose.” Another very good aspect of the informal process is that any necessary correction often can be done without having to identify the complaining person. Most people are reluctant to raise issues of harassment because they fear a backlash from the person they complained about. The discrimination laws have prohibitions against retaliation, generating additional liability against the employer. A supervisor who announces to the work group that, “Jack has complained about your ethnic and religious jokes, so you have to stop!” is asking for trouble. Instead of stopping the offensive behavior, the supervisor has just created an additional problem of group resentment and retaliation against Jack.

In handling minor issues, the direct supervisor can just talk to people and give them fair warning.

The quickest way to destroy the anti-harassment policy is to retaliate against those who use it. Once word gets out about how Jack’s situation was handled, no one else is going to be foolish enough to use the policy. The policy becomes a joke. Then, instead of getting the chance to find out about and solve problems internally, the problems stew and build until they blow up into major legal liability.

Instead, a manager can remove the pictures or stop the comments or jokes without letting anyone know who raised the issue. It can be presented as a management decision. The supervisors can state that they, themselves, find the behavior inappropriate. This prevents retaliation against the people who use the anti-harassment policy.

In handling minor issues, the direct supervisor can just talk to people and give them fair warning. It is a good idea to note the date and what was done in a way that can be used later to document, if needed, but not in anyone’s personnel records. Even though an effort has been made to resolve the issue informally, if it does not work, it will be necessary to have documentation that fair warning was given and the behavior continued anyway.

For other than minor issues, the supervisor should inform the person designated in the anti-harassment policy, and the informal action should be coordinated or cleared with that person, to be sure it is indeed an “informed” issue and does not compromise the consistency of discipline done in other parts of the organization.

Why is it necessary to consult with Human Resources or your company management before implementing any informal resolution?:

1. It is always good to get another opinion, especially a professional opinion, from an HR person who has experience and knows the legal parameters.

2. One’s personal idea of what is “minor” and warrants informal action may be seen as far more serious by others.

3. Consistency is critical. Only those with an “overview” function know now similar situations were handled in the past, or in other parts of the organization. If your informal action is not consistent with those other situations, it may result in a discrimination case or grievance of another sort. So, check before you act.

Formal Process

Quid pro quo, “super offensive,” and some other harassment situations should not be addressed informally. Investigation and a formal determination will be required. Human Resources or an executive should be in charge of this process.

The formal procedure should be carefully planned out before the anti-harassment policy is publicized. It has significant legal and practical ramifications for the organization, and you cannot afford for those assigned to handle formal investigations to be untrained and unprepared when the first formal complaint arises.

Components of a Good Procedure

Among the issues to consider in a good procedure are the following: conflicts; fact collecting; confidentiality, due process; action; and documentation.

Personal conflicts arise when the person doing the investigating has a close relationship with the complainant or the accused.

No Conflicts: The most common conflicts are with other procedures and personal conflicts. Other employment procedures giving time limits or guaranteeing certain rights for other employees may already be in place. Especially if a union represents employees, the contract may have a very specific procedure for discipline. Be sure that the anti-harassment procedure does not conflict with that. Be sure that whoever handles harassment investigations is totally familiar with any contract provisions or other personnel policies that give rights to complainants and to those who are accused. Failure to do so can thwart any results of the investigation.

Personal conflicts arise when the person doing the investigating has a close—positive or negative—relationship with the complainant or the accused.

In one academic situation, the student harassment complaint process and the staff’s union contract were at odds. Any time a student filed a complaint against a staff member, following the steps of the student harassment complaint procedure automatically violated the contract rights of the staff member. So check out the other organizational processes before giving out the harassment policy; or leave it flexible enough to fit all.

Personal conflicts arise when the person doing the investigating has a close—positive or negative—relationship with the complainant or the accused. This destroys objectivity. Another person should investigate.

Get Facts, but Don’t Make Promises (Oral or Procedural): At the “intake” of a complaint, one has to get all of the facts possible. It is difficult to decide how to handle a situation unless there is a good body of information. A decision on whether to try an informal resolution or start an investigation must be based on a judgment of the facts and circumstances. So do a thorough interview of the employee raising the issue.

Ask the person to make an outline (in advance, if possible) of the issues, chronological description of incidents, and names of any witnesses. Carefully review this list with the person for complete understanding of the issues.

Ask how the person feels about the situation and ask for his or her perspective on the situation. This can be very important in deciding whether to choose informal resolution or formal investigation. It is also very helpful in determining how one approaches the situation following the initial interview.

Do not make promises during the interview. All you are getting is one person’s version and perspective. You cannot make a promise to “solve” something until you find whether it exists, can be solved, or ought to be solved. You can promise that the issue will be examined, but do not commit beyond that. Otherwise, objectivity and neutrality are jeopardized.

Also, do not make time promises. Do not promise to have the issue wrapped up or a decision made by a set deadline. Prompt action is crucial in an internal effort to resolve or investigate harassment cases. These situations often are highly volatile, and delay leads to “blow ups” or to the rumor mill clouding the ability to find the real facts. However, artificially imposed deadlines also are dysfunctional. Just as soon as you promise a deadline, you run into complications: key witnesses are on vacation, other business emergencies take your time. Then you have the pressure to meet the deadline and may cut corners on the investigation in order to do so. The result is a bad process. Good anti-harassment procedures emphasize prompt action. They do not set artificial deadlines.

Anti-harassment procedures should not be stated in writing as part of the anti-harassment policy. There may well be written guidelines for the investigator, but they are not set in concrete as a promise in the policy itself. The investigation needs a certain amount of flexibility, because every situation is a bit different. Preserve flexibility by not making too many procedural promises.

Procedural promises in a public sector policy may generate binding “procedural due process” guarantees. A person disciplined for harassment might obtain a reversal, and damages for denial of due process, if such a step is not followed. In other situations, a too-detailed set of procedures or guidelines may create an enforceable contract under state law (Marin v. Costco Wholesale Corp. supra.).

Confidentiality: In addition to harassment, these situations also raise other legal concerns. Labor relation laws on discipline and discharge and civil actions for invasion of privacy and defamation, among others, can be triggered by a harassment complaint and investigation. The person handling the issue must be aware of these.

Only talk about the issue with those who have direct, relevant information. Ask each person you talk to not to discuss this with others who are also witnesses. However, too strong a warning may be a problem in a union setting. The National Labor Relations Board has ruled that a strong warning not to discuss an investigation, with an “implication” of discipline, is an Unfair Labor Practice. Union members have a right to discuss work-related issues. Any strong warning to not talk about the facts must be based on the compelling security needs of a specific situation.

The results of the process, whether formal or informal, should be shared only with those managers and employees who have a significant need to know. Often only top management, the direct supervisor, the complaining person, and the accused ever know there was a complaint and the outcome. This confidentiality protects the organization from liability if the person accused feels unfairly harmed. It also protects the person who raised the issue from retaliation and from getting a reputation for complaining.

The policy should not “guarantee” confidentiality. There are too many ways for information to become generally known. A formal guarantee in a policy could create liability under privacy laws. So you should strive to maintain confidentiality, but do not create a formal expectation in the policy. Any confidentiality mentioned in a policy should be qualified so as not to be seen as a guarantee.

Due Process: The person who is accused of harassment has rights. If you have a collective bargaining agreement, it will have a formal set of due process rights, which must be closely adhered to. In the absence of a contract, even in employment-at-will states, emphasis should be placed on the fundamental fairness concepts of due process.

Essentially, this means that the person accused of harassment should have the expectation that:

• The person knows what he or she is accused of and that discipline or discharge could result.

• The person has an opportunity to tell his or her side of the story and get the same full attention to the details as does the person who complained.

• The person will have a reasonable timeframe to put together any information he or she believes is important.

• The investigator will fully follow up and interview the witnesses named and thoroughly “check out” their facts and perspective on the situation.

• The decision will be fair and based on valid evidence.

The earlier concepts of neutrality, objectivity, and confidentiality are also important elements of this due process. If discipline or discharge is a result, you want to be as sure as possible that it has been a valid and fair process.

Do Something: If an investigation reveals evidence of harassment, then do something to solve the problem. The main purpose of having an Anti-Harassment Policy and an internal complaint procedure is to allow the employer to have the chance to catch and solve problems before they blow up into lawsuits.

If the organization fails to effectively solve problems, it forces employees into the legal process, with protracted proceedings and great costs to all. The eventual liability for the employer is multiplied many-fold. Early, internal resolution saves all of that hassle, liability, and bad publicity.

Take action that matches the severity and harm of the harassment to remedy the problem.

So, formally or informally, do something. Take action that matches the severity and harm of the harassment to remedy the problem. That “something” may be the informal conciliation of issues, or discipline or discharge of an offending person. That “something” should include economic remedies for employees who have suffered lost promotions, discharge, or other tangible economic harm from the harassment. The employer must do something reasonable, in light of the harm done, to provide an effective remedy.

The court often weighs the action taken, and discipline given, in deciding whether the employer has satisfactorily met its duty to resolve harassment situations or is still legally liable for having failed to effectively do so, and how liable.

Do not discipline overzealously. In a misguided effort to demonstrate that “We’re serious about harassment!” some employers will give major discipline for a small issue “in order to set a firm example.” Rather than enhance the Anti-Harassment Policy, this sort of overreaction tends to kill it. The general workforce thinks it was a “nutty overkill.”

It certainly puts fear into people. Unfortunately, it puts fear into those who are being harassed. Now they are so afraid of the overreaction, of seeing another worker get fired because of their complaint, that they fear coming forward and using the process. So they sit on their misery until it blows up, rather than see someone else excessively disciplined. Excessive action has a “chilling effect” that destroys your policy’s effectiveness. So, use a rational approach—neither over- nor under-reacting.

Document: Informal resolutions and first warnings can be documented in notes in a supervisor’s calendar, in a log book or incident file in the manager’s office, or in a nondisciplinary “guidance memo” to the employee. If later formal action is based on failure to change behavior after warning, it will be important to be able to specify when that warning was given.

These notes generally should not be placed in an employee’s personnel file. That would not be “informal.”

If an investigation is done and a formal decision is made, it should be thoroughly documented in an investigation file. You need a valid basis of information before decisions are made. Only by keeping a file of notes, documents, and reports can you create that basis.

At times, employers have escaped liability by proving that a sincere effort was made to investigate and stop harassment. The primary evidence of that effort was production of an investigation file that had sufficient details.

Often either an unsatisfied complainant or a harasser who received discipline will take the case further, and file a legal action. It may take months or years to come to trial, and by then all the witnesses may have poor memories of the event. At that point, a good investigative file is crucial for the employer’s defense in reconstructing the facts and refreshing memories. When serious allegations of harassment that could result in major discipline of the harasser are made, it is a good idea to have witnesses sign the notes taken by the investigator and verify their accuracy.

Keep legible notes, and organize the file. By the time the file is used in court or arbitration, the person who investigated may no longer be available, and others will have to read and understand it. Even the investigator may not be able to decipher two-year-old, poorly written notes and a disorganized mass of paper. The judge will certainly be reluctant to give credence to evidence that cannot be easily read and understood.

Keep this documentation for at least the statute of limitations for all actions that could arise (e.g., cases on discrimination, privacy, defamation, contract of employment, unfair discharge). Keep it secure and confidential so that people who were not directly involved in the investigation and decision do not have access.

Monitor and Follow-up

An effective process follows up afterward to make sure behavior has changed and to ensure protection from retaliation. Retaliation is prevented by periodically checking with the complainant after the investigation is over. You can then catch any aftermath issues and resolve them before they blow up into another round of hostility.

Monitor remedies to be sure that changes in environment are made, and that these changes stick. Too often the initial environment changes following an investigation, then slips back into old patterns of behavior, due to lack of follow-up and reinforcement, leading to an environment in which the original situation is set to recur.

Retaliation is prevented by periodically checking with the complainant after the investigation is over.

Monitor all workplaces once in a while. Remember, the Supreme Court was critical of Boca Raton because “its officials made no attempt to keep track of the conduct of supervisors.” So, harassingly offensive environments could develop and thrive like mildew in the basement; no one ever went down to look. Go look and listen.

Training

All employees, both management and non-management, should receive harassment training. (Some employers also include contractors’ or vendors’ employees who are routinely on the premises.) That training should include the following:

• An explanation of what constitutes harassment;

• A copy of the policy and explanation of how it works;

• An opportunity for trainees to discuss and raise questions and concerns about the topic area and the policy;

• An emphasis on supervisors’ “duty of care” and all employees’ duty to maintain an appropriate environment;

• A signature from each employee verifying attendance at training and receipt of policy, with that signature form placed in each employee’s personnel file; and

• New employee training (the most overlooked area). Those who come in later also must get the message.

Training is money saved. Even using an outside consultant, you can train a small workforce for $2000. A 3000-person company could be trained for under $40,000. In contrast, the average harassment case costs $70,000 or more if you win. If you lose, it could cost $300,000 or more for just one case. So training of all is far cheaper than defending one.

Follow-Up on Training

Good training on harassment and duty of care is effective only if it is followed up by monitoring and periodic reemphasis so that it does not “fade.” Many employers have done serious, in-depth anti-harassment training, once. Then the message faded over time; new people came in who did not get the message; things slowly got “back to normal”; and then a harassment situation blew up because no one was attuned anymore to prevent, catch, and correct.

Small doses of reinforcement are all that is necessary to keep the points in focus and keep your harassment defense effective:

• Twice a year put “workplace environment/conduct” on the staff meeting agenda.

• Clip newspaper articles on harassment or sexist/racist statements made by public figures. Circulate a copy as a reminder (with praise and a “thank-you” to staff for not saying things like that).

• Copy short synopses of harassment cases from services such as BNA or Law Week. Circulate them as reminders and updates on the changing standards or new issues.

These “small dose” practices keep the message from fading, keep employees aware of the internal process, and keep your harassment defense up to par in an inexpensive way.

Challenges to Respectful Workplace Policies and Procedures

Everything is a balancing act. Respectful workplace policies and practices seek to protect people from unwelcome, harmful attention. At the same time, people have rights to engage in beliefs, statements, and behaviors that, in the view of others, may be unpopular, unwelcome, offensive, and even disruptive, but are protected by the Constitution or other laws. This often places the organization in a predicament of conflicting complaints vs. rights.

There is liability for not appropriately addressing complaints of harassment and abusive behavior. There is liability for taking “corrective action” or terminating those who are accused but only exercising their protected rights. Respectful workplace policy and procedure must be developed and operated with this balance. The most common challenges to respectful workplace policies and procedures are discussed in the following sections.

Overreaching and Overly Rigid Policies

As mentioned earlier, overzealous policies backfire. Firing people in an overreaching or overly rigid way results in liability. The courts repeatedly have stated that the harassment laws are not intended to create a sweeping national “code of civility.” Many crude, inconsiderate, immature, or unwise behaviors may be seen that simply do not rise to the severe or pervasive level. Not every glitch, stray remark, or improper action should result in severe sanctions.

In one case, it was found that the University of Evansville overreacted by firing a “chin-chucking” professor for harassment. A state appeals court ruled that a university did not have foundation to fire a tenured male professor for sexual harassment. He had approached his Department Chair in the lounge area, said “Hi, Sweetie” and “chucked” her chin. The Department Chair filed a sexual harassment complaint. The professor was fired under the university’s Zero Tolerance Policy for harassment. He filed state and federal due process and contract claims. The court found that there appeared to be a rush to judgment and overreaction. There was no prior warning to the professor regarding his behavior being unwelcome or violating the sexual harassment rules. The Department Chair claimed that he should have known his behavior was unwelcome because of her “stony silence” reaction on a prior chin-chuck incident. The court found this insufficient to give fair warning. Further, the incident itself could hardly be characterized as sexual harassment under any legal definition of that term. (Haegert v. U. of Evansville (Ind. Ct. App., 2011)).

All parties have rights under a complaint/discipline policy. Overzealous enforcement often violates the rights of those accused, just as lax enforcement violates the rights of those who raise issues. Overzealous enforcement often leads to a rush to judgment without a sufficient factual or legal foundation and results in a suit by those who are harmed.

Any complaint and investigation process must balance the rights of all parties. It must be neutral and professional, with decisions based on a sound factual and legal basis. Overzealous enforcement backfires in several ways. As illustrated, it can result in liability for violating the rights of those who are the subjects of investigations.

What Is “Zero Tolerance”?

The term “zero tolerance” should be considered very carefully before it is inserted into a policy. It has no well-defined meaning. Everyone is free to interpret it at will, and often to differing and discriminatory results. Also, zero tolerance often is enforced selectively, with some people getting “zero” and others being given a bit more latitude. (Brockbank v. US Bankcorp (9th Cir., 2013)).

If zero tolerance means firing people for even the tiniest of infractions, almost no one will be able to measure up. Everyone will become a victim of the policy over time. Like the Prohibition Era, more and more people grow to disrespect the policy, violate it in secret, and conspire to cover up others’ violations. This sort of zero tolerance leads to absurd results, such as firing someone for a smutty joke, while giving only a suspension to people who engaged in throwing punches at each other. It looks “nutty” to the press and creates bad PR and a backlash. These sorts of overzealous and rigid policies are easy to challenge legally, and create liability for the organization.

If zero tolerance is defined more flexibly, it can be more useful. Zero tolerance does not mean we fire or expel for every little infraction. It simply means that the infraction is not ignored. It is given attention. It may be given attention in an informal manner, with corrective coaching and fair warning. It may be given attention in a more formal way, with discipline. It may be attended to with discharging or expulsion. It is flexible to fit the circumstances and level of seriousness. This sort of reaction makes sense to all involved. It leads to more acceptance and compliance with the policy. It is legally defensible when challenged.

Stereotypical “Overprotection” Can Do Even More Harm to the “Protected” Group

In EEOC v. New Prime, Inc. (W.D. Mo., 2014), it was found that requiring a same-sex instructor was wrongful and that an attempted remedy for sexual harassment created worse discrimination. A trucking company was sued for sexual harassment when a male trainer harassed three new female driver-trainees. As a cure, the company adopted a same-sex policy for their over-the-road training, in which only female trainers would be on the road with female trainees. However, the company had only a very few female trainers, and many male trainers, resulting in a backlog for newly hired women. There was a “female waiting list” that could mean women had to wait for as long as a year before the training occurred. Some women dropped out of the process due to the long wait. Newly hired men got almost immediate training, and quickly started earning money as drivers. As a result, men with the same offer-of-hire date got a much quicker “start” date, with months earlier seniority, giving them a better opportunity to get priority in assignments. The effort to prevent harassment had created a worse sex discrimination problem. The company’s same-sex cure also seemed to stereotype all men as being unable to train a woman without engaging in harassment, as if male truck drivers are somehow not as capable of adult, appropriate, professional behavior as are men in other occupations, where both genders train and work together without a segregated system. This could also result in a case claiming sexual stereotyping by the men who are denied opportunities to be trainers.

Bias and Discrimination and Selective Enforcement

Gender: Many early harassment policies resulted in liability due to a discriminatory focus. Although they were designed to stop discrimination, they, in fact, merely resulted in different forms of the same evil. Policies stereotypically defined some sorts of people as the victims and others as the perpetrators. They ignored the reality that people of all races, genders, and ethnicities can be both recipients and perpetrators of unwelcome attention. A large number of sexual harassment cases are filed by men, and women can be the aggressors. People of all races and ethnicities are harassed. So policies that stated the intent to protect “women” or “minorities” from harassment by “men” or the “majority” automatically violated the discrimination laws and the Equal Protection Clause.

You probably did it—because you’re male! The Second Circuit Court of Appeals ruled in favor of a man who was fired due to gender stereotyping. A female coworker accused him of harassment. He denied the harassment. The company did no investigation whatsoever, but because the employer was afraid of being sued by the woman, the company informed the male employee he was being fired because “she knows a lot of attorneys and you probably did what she said you did because you’re male!” The court ruled that this gender stereotyping is illegal sex discrimination under Title VII. An employer may not stereotype men as having an innate propensity to harass and discharge a man on that “invidious” presumption (Sussman v. Gamache (2nd Cir., 2009)).

People of all races, genders, and ethnicities can be both recipients and perpetrators of unwelcome attention.

Among the most famous of these biased policies were the “successive stages of permission” policies adopted by a number of universities. On a date or romantic event, male students were required to ask, step by step (up to 10 steps), for the woman’s permission, from hand holding to kissing to touching, to removal of each piece of apparel, to wherever this all led. Skipping any step of asking permission violated the policy and could result in discipline or expulsion. No requirement was made of the women. Women had no policy restrictions and no penalty for proceeding without any asking at all. Obviously, these policies also perpetrated stereotypes of men as brutish aggressors and women as vulnerable, innocent, passive victims—the “weaker sex.”

Race Cases: In Burlington v. News Corp (E.D. Pa. 2014), the court found for a white employee fired for non-hostile use of the “N-word,” whereas black employees could use the term without sanctions. A white newsroom employee at a Fox Network station said the full N-word in a discussion about a story. Others reported it, and he was fired. He sued, and the court found evidence of racial discrimination. Everyone avoids saying the actual N-word (including in this article) though everyone knows exactly what the acronym means. This was a newsroom discussion on a story about an African-American church’s “Funeral for the N-word” event, in which the full word was said over 100 times. The white employee said, “Does this mean we can now actually say N . . . . . . ? It might add more impact and credibility to the newscast.” It was a standard discussion of how to best present a broadcast story. One of the others present said, “I can’t believe you said that.” The use of the word was reported to management. Soon the rumor mill had expanded it to a story that the white employee had engaged in a “bizarre” lecture or tirade repeatedly using the N-word. A campaign was launched to fire him, with some African-American employees stating that they could no longer work with him. He was specifically told that white people could not use that word, whereas black people could. He was fired. He sued. The court found ample evidence of Title VII racial discrimination. His use of the N-word was not hostile, not pejorative, and not directed negatively about a race. It did not violate the harassment policy. It was part of a discussion similar to other newsroom talks about presentation of controversial issues. African-American employees used the term, nonpejoratively, even in jest, without any consequences. This rush to judgment created a prima facie case of race discrimination. In another case, Iwillis v. Cieco Corp. (5th Cir., 2014), an African-American employee was fired for a mild comment regarding white employees, but the white manager received no action at all for racial slurs.

Religion: Both the Constitution and Title VII protect religious beliefs and require accommodation for them. This includes unpopular beliefs and objections to policies.

Universities take pride in the traditions of academic freedom, free speech, open debate of ideas, and diversity of thought. However, it does not always seem to work that way. An adjunct professor of social work alleged that she was harassed because she declined to give open support to the campus lesbian, gay, bisexual, transgender (LGBT) organization. She said that under her Baptist faith, non-heterosexual orientations were morally wrong, and she could not support them. She did not express antagonism or discrimination, or even opposition, to the LGBT organization’s right to be a part of the campus, only that she could not support it. She was then allegedly subjected to harassment by the other faculty members. Her bid for Assistant Professor was denied. The committee was composed of LGBT supporters, some of whom refused to attend her interview for the position. They recommended an allegedly less qualified candidate and also stated that she was “not a good fit” for the department. The court found sufficient evidence of these alleged actions to allow the case to continue to trial under Title VII, religious discrimination and 42 U.S. Code 1983, Equal Protection. The §1983 case was against both the University and five named faculty members personally (Gadling-Cole v. West Chester University (E.D., Penn., 2012)).

Employees who were disciplined for reading their Bibles during harassment training later won Title VII cases against the company. They were demonstrating religious objection to inclusion of sexual orientation as a protected category. They did not refuse to attend, nor did they state any refusal to abide by the company’s non-harassment policies. The EEOC ruled they had a protected right to quietly express a religious objection.

Those who use their beliefs as grounds to harass are not protected.

In some case, a diversity policy has actually resulted in discriminatory action. AT&T adopted a diversity policy that required all workers to “value the differences” in all other employees. A Christian employee, who believed homosexuality is a sin, asked for clarification of the policy. When he did not receive clarification, he refused to sign the policy and was fired. He won his religious discrimination lawsuit because, despite the fact that he had vowed to treat all coworkers professionally and with respect, AT&T failed to accommodate his religious beliefs by failing to provide an explanation before ordering him to sign the policy (Buonanno v. AT&T (D.Co., 2004)).

It must be stated that the law protects beliefs, not acting out against others. Those who use their beliefs as grounds to harass are not protected.

A company’s diversity posters and policy included sexual orientation among the various other EEO statuses listed. One employee interpreted this inclusion of “gays” as a company effort to change his moral values and as an attack upon Christian employees, and himself in particular. He believed he had a duty to expose and fight “sin,” and must counterattack by posting “anti-gay” scripture and other messages on the company’s system. He persisted in spite of company efforts to explain that the diversity program merely promoted tolerance and did not advocate changing anyone’s religious or moral values. He stated that his posted messages were “intended to be hurtful” to gay employees and refused to take them down. He was fired. In upholding the discharge, the court held that an employer has no duty to accommodate disrespectful religious messages. Further, the company had a legal obligation to include sexual orientation in its EEO policies and efforts (Peterson v. Hewlett-Packard Co. (9th Cir. 2004)).

Disability: At times, physical or mental disabilities may be at the root of unwelcome, offensive behaviors. The Americans With Disabilities Act, the Rehabilitation Act, and state disability laws prohibit discrimination and require reasonable accommodation. These laws do not, however, protect people who engage in overtly violent, threatening, unsafe behaviors, even if the behavior is caused by a disability (Reeves v. Jewel Food Stores (7th Cir., 2014); Williamson v. Bon Secours Richmond Health Syst. (E.D. Va., 2014)). However, an employer may be required to examine any such situation and consider whether accommodation is needed and would be effective before taking any action. Failure to at least consider the disability issue before discipline or discharge has resulted in liability for disability discrimination. (Walton v. Spherion Staffing (E.D. Pa, 2015)).

Freedom of Expression

Respectful workplace policies should focus on preventing certain behaviors, not on protected opinions or beliefs. Even some offensive and disruptive expressions or behaviors may be protected if done in the “proper time, place and manner.”

The Balance—Matter of Public Concern or Improper Behavior?: The First Amendment applies to the public sector. It protects the right to speak out on “matters of public concern.” However, it also is true that a public employer has a distinct interest in regulating the speech of its employees in order to ensure and promote the “efficiency of the public services it performs” (Rankin v. McPherson (U.S. S.Ct. 1987)). The problem is to balance the employee’s free speech rights with the interests of the public employer. Public employees do not enjoy “free reign to speak out without regard to the interests of their public employer” (Pickering v. Bd. of Educ. (U.S. S.Ct. 1968)). “A public employee’s right to freedom of speech is not absolute” (Bernheim v. Litt, 79 F.3d 318, 324 (2nd Cir., 1996)).

A public employee who makes a First Amendment violation claim must show that: (1) the speech addressed a matter of public concern; (2) there was then an adverse employment decision; and (3) a causal connection exists between the speech and that adverse employment decision—that is, the plaintiff’s speech was a motivating factor in the adverse employment action. Even if the plaintiff establishes these three elements, the claim remains subject to several defenses. The government may defend its actions by showing the employee’s speech disrupted the workplace (Rankin v. McPherson, Id., Connick v. Myers, Id. (1983)). The public employer must demonstrate that its interest in promoting an efficient workplace outweighs the employee’s interest in commenting on matters of public concern.

Not all speech or expression is protected. A public employee’s “blurting” on anything and everything is often just “verbiage,” which does not rise to the Constitutional level, no matter how important it may seem to the individual. The expression must be about “a matter of public concern.” Offensive, harassing statements or behaviors about other individuals, personal animosities, sexual advances, and so forth are not protected.

Labor Employment Laws

Labor employment laws protect employer rights to expression on wages, hours, terms, and conditions of employment. This includes loud, angry, overt expressions. It includes “disrespectful” and derogatory comments about management or others in the workplace. This is not an absolute right, but must be carefully considered before calling protected speech “harassment” or “bullying.”

The NLRB has ruled in favor of an employee who was discharged for cursing at his supervisor (using the “F” word twice during a heated discussion of a pay policy). The supervisor seems to have started the heated exchange by insulting the employee (but without profanity). The NLRB used a four-factor analysis: (1) place of the act; (2) subject matter; (3) nature or level of the language; and (4) provocation. The Board found the pay policy issue was covered by the National Labor Relations Act (NLRA); the conversation was not in a public place in front of other workers; the level was only “moderate”; and the supervisor started it. The Board ordered reinstatement and back pay.

In another case, during a pre-disciplinary meeting, an African-American union steward called a white supervisor a “bastard,” “racist,” and “redneck son of a bitch.” The NLRA protects harsh language in the heat of union–management confrontation, but in this instance the court found the words were without protection. The employee whom the steward was representing was white. No issue of race or discriminatory discipline was involved in the meeting. Thus the name calling was merely a personal attack which served only to inflame the situation, without any relevance to the issue at hand. The steward stayed fired (Media General Operations, Inc. v. NLRB (4th Cir., 2005)).

Overly broad policies can have a “chilling effect” on constitutionally or legally protected speech. The policy language and/or enforcement can result in findings of constitutional violations or unfair labor practices.

Privacy

Technology has enabled people to be abusive toward others 24 hours a day. A great deal of bullying and intimidation involves use of social media contacts outside the normal space and time of the organization. Nonetheless, this unwelcome attention grew out of the organization and can have serious effects on people in the organization.

The Constitution and other legally protected expression concepts apply even more to other off-duty behaviors. Privacy considerations also are at issue if one goes beyond a person’s open “public” social media presence.

However, some off-the-job expression is not protected and warrants discharge. The case of Locurto v. Giuliano (2nd Cir., 2006) is a good example. The off-duty New York police officers participated in a Labor Day parade that portrayed ethnic stereotypes. They wore “black face” on a float that received much negative attention in the press. The Court rejected the plaintiffs’ off-duty “private” conduct and First Amendment freedom of expression claim. “The First Amendment does not require a government employer to sit idly by while its employees insult those they are hired to serve and protect.” In this overt situation, a public employee’s “right to express his personal opinions must yield to the public good.”

In another case, a tenured elementary school teacher had posted pictures of herself undressed or nearly so on multiple public access Internet dating service sites. The school board terminated her contract. She sued for violating the contract and also violating her right to engage in legal activities on her private time. The arbitrator ruled against the teacher. Teachers can be held to a higher standard. The photos were disruptive to the educational process and efficient operation of a school system. They were not expressions of public concern which might qualify for Constitutional protection (In re Phoenix City Bd. of Education (2009).

NLRA and Social Networking: There is no expectation of privacy when one posts items on public display. (Private access sites are a very different matter, and breaking in can be illegal.) Most blogs or social networking are open to view by one’s employer. Nevertheless, there are some protections.

Remember, the NLRA allows employees to openly critique wages, hours, and terms of their employment. The First Amendment protects public sector employees who raise issues of “public concern” (over one’s personal gripes; opinions and displays are generally not protected). Generally, an employer considering discipline for an employee’s off-duty conduct should consider the following factors:

• Does the employee’s off-duty conduct have a connection to the workplace?

• Does it cause injury to the employer’s business or operations?

• Does it render the employee unable to report for work?

• Does it cause the employee to be unsuitable for continued employment? and

• Does it lead to other employee(s)’ refusal to work with the off-duty offender or pose a danger to other employees or overt harassment or bullying of others?.

In one case, a union was found to have engaged in Section 7 Unfair Labor Practices and harassment by public media use. Five African-American members sued their union for racial discrimination in its hiring hall and recall-from-layoff practices. They lost. The court found no discrimination. After the case was over, the union made public postings repeatedly naming the five members and how much they had cost and harmed the union to defend the case. In the resulting case, the court agreed that this was a valid claim for harassment retaliation. The union’s actions held the five members up for public disapproval, bullying, and negative treatment by other members, which could be seen as designed to have a “chilling effect” on anyone else who might wish to ever complain about discrimination (Franklin v. Local 2 of Sheet Metal Workers Int. (8th Cir., 2009)).

The NLRB has become very active in this area. It is repeatedly intervening when harassment policies, confidentiality policies, and such rules “overreach” and seem to threaten to “chill” protected comment and criticisms.

NLRB guidance has stated that policies that generally prohibit “discourteous,” “disrespectful,” or “offensive” conduct, without clarification, may have a chilling effect on employees’ complaints about management or its treatment of employees. However, employees who made unprofessional, inappropriate or disparaging comments that either did not relate to the terms and conditions of their employment or did not seek to involve coworkers in workplace issues did not enjoy Section 7 protection.

This guidance is not very helpful. It is so general, in fact, that it has little meaning. The various NLRB memos on what is and is not seen as a Section 7 violation have been contradictory. Even a recommended “model policy” contained language that an earlier NLRB letter stated was a Section 7 violation.

The message is to draft carefully for any policy which covers off-the-job or outside the organization activity. Be doubly careful before acting to discipline or take any other actions against people for such activity.

This article presents only an overview. The author has also written more detailed articles on the pitfalls of the formal process entitled A Word of Caution—Investigating Employment Matters and Fair Discipline. These works address specific elements of how to do the formal process and how not to get sued for doing your job as the investigator. The author also presents management seminars on this topic. Contact the author for more details.