Workplace Harassment - Can You Practice Zero Tolerance?

Why Zero Tolerance for Harassment Has Zero Chance of Success

April 9, 2018

IT SOUNDS GREAT IN THEORY, BUT CAN YOU REALLY PRACTICE IT?

The concept of “zero tolerance” seems to provide absolute clarity: If we find evidence that you have harassed someone—sexually or otherwise—you’re out of here. 

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However, is an ill-timed dirty joke as egregious as verbal sexual harassment? Is an unwanted invitation to dinner the same as an obvious come-on? “Zero tolerance” equates them and that means an employee could potentially be terminated for calling someone “dear” just as easily as if they were to ask for sexual favors.

Where an employer sets the bar is entirely up to them. But in a tight labor market you might not want to fire everyone for every possible offense.

Before we talk about what employers can do to control—or at least ameliorate–harassment, let’s figure out what it means.

Harassment Can Take a Variety of Forms:

  • Unequal pay practices for equal work
  • Pregnancy discrimination
  • Bystander inaction: Observe but don’t report or intervene
  • Discriminatory hiring practices
  • Gender bias
  • Job description language unrelated to the job function
  • Artificial job barriers (e.g., irrelevant criteria)
  • Unconscious bias (assuming that a woman with children will not or cannot handle traveling for business)
  • Quid Pro Quo: “I’ll scratch your back if you scratch mine”
  • Hostile work environment: Inappropriate comments, sexist jokes, unwelcome teasing
  • Sexual harassment: Unwelcome sexual advances, requests for sexual favors, verbal or physical harassment of a sexual nature or offensive comments about a person’s sex
  • Harassment—particularly sexual harassment—can also cause victims to feel intimidated or afraid to speak up. It can also cause leadership to cover up or fail to report incidents, which creates liability for the organization.
  • What you need to do first is identify what your organization will or will not tolerate. Then, stay consistent and be vigilant about monitoring behaviors.

How Do You Make the Work Culture Less Conducive to Harassment of Any Kind?

  • Foster respect. Do whatever you can to get employees to treat each other with respect. The Equal Employment Opportunity Commission (EEOC) recommends civility training as a best practice to prevent harassment. EEOC has other best practices on their web site, which could potentially work for your organization.
  • Determine your “scale of harassment.” What is bad enough to get someone fired? What offenses are “fixable”?
  • Train your people. Make it engaging, with concrete examples and time for questions. But make it mandatory. Also make sure employees have ways to ask further questions or express concerns after the training is over. And make sure managers are trained as well.
  • Look for power abuses. Managers, leaders or even employees who harass are abusing a position of power. When that occurs, harassment is likely to follow.
  • Keep after the offenders. If you didn’t take the opportunity to make the offender understand that what they did will not be tolerated—and why—then you could be liable for the next inappropriate comment or action.
  • Make sure employees are informed. Let them know what the law covering harassment is in your state, what resources are available to them and be clear about the organization’s policy and process.
  • Keep the employee handbook up-to-date. Audit it every year to ensure that what it states accurately reflects the organization’s policy.
  • Ensure confidentiality. Have an anonymous hotline or another way to make sure that every complaint is confidential and that no one will retaliate.

Three Things You Can Ask Employees To Do To Help Avoid Harassment.

  1. Remind them to consider how they would feel if the shoe was on the other foot. In other words, simply follow the Golden Rule: Do unto others as you would have them do unto you. Seriously.
  2. Keep their eyes and ears open. If you’ve ensured confidentiality and have a process for handling harassment situations, let employees know that they should report any episodes of harassment, even if it was told to them in confidence.
  3. Don’t fall victim to generalizations and stereotypes. Just because you don’t like someone doesn’t automatically make them a harasser. On the other hand, just because they’re your friend doesn’t mean they’re not capable of bad behavior.

What Happens if You Have to Investigate a Harassment Claim?

What’s the best way to proceed? Experts say that it’s important to treat everyone equally. Many companies have tended to treat executives less harshly than lower echelon employees. But even if the accused is one of the star performers, applying policies consistently is critical.

One way to remain unbiased is to avoid selecting an investigator who knows either party. If the person leading the investigation is someone who knows either the claimant or the accused, the company can be accused of bias. And an investigator who doesn’t know either party is more likely to approach everything with a more open mind. Depending on the particular organization, its size, and the level of executives involved, companies may decide to create a special committee of the Board of Directors or a team comprised of HR, legal and compliance officers. The best of all possible worlds is to assign the task to outside HR consultants or legal counsel.

Talk with Marsh & McLennan Agency

Marsh & McLennan Agency works closely with the most experienced employment law attorneys to help our customers determine how to construct harassment policies, what should be included, how to investigate and how to communicate to employees. Talk with your Marsh & McLennan Agency representative to get more information.

Wondering what your harassment trainings should look like in the wake of the #MeToo movement? Join MMA and Kate Bischoff at a happy hour discussion on June 5. Register HERE