Why Zero-Tolerance Policies Make Little Sense

Many employers boast of having “zero-tolerance” policies when it comes to workplace misconduct. It’s become a catchphrase for showing that a company takes things seriously and won’t put up with any nonsense. But nonsense is precisely what a growing number of observers believe these policies are.

On a recent XpertHR podcast, management-side employment attorney Robin Shea said zero-tolerance policies do more harm than good. “Zero-tolerance policies communicate to employees that certain behaviors will automatically result in discharge every time,” said Shea. While no one would disagree that harassment, threats and other misbehavior should not be tolerated, she advises, “You don’t have to go nuclear in every case.”

Exhibit A: Meet the Mets

Take a real life case that occurred earlier this year involving the New York Mets as Exhibit A of how a zero-tolerance policy can lead to a bizarre result. Despite the brilliance of pitcher Jacob de Grom, the Mets have had a disappointing season on the field. But it’s off the field where this tale takes place.

A pair of longtime employees, including the team’s public address announcer Alex Anthony and Chris Granozio, were chatting in an area of the office that they thought was largely empty, a vacant control room requiring key card access. Anthony and Granozio stepped into the room because Anthony had an off-color joke he wanted to tell, and neither man wanted to distract any of their fellow employees.

Unbeknownst to them, the neighboring office was not empty. A female co-worker heard the joke through the wall and recorded it on her phone. Rather than asking them to stop, she sent the recording directly to HR.

And under the organization’s zero-tolerance policy, you guessed it, Anthony and Granozio were fired. Both reportedly had unblemished records. It didn’t matter. Granozio, who simply listened to the joke and laughed at it, has said publicly he wished that he would have had the opportunity to apologize.

“I asked in my exit interview, is there anything I can do? Take sensitivity training?” Granozio told the New York Daily News. “They shook their heads and said, ‘zero tolerance.’”

Upon being told of the case, Robin Shea said, “That’s way too harsh…. They thought they were alone.” Shea added that if someone overhearing the joke was offended enough to report it to HR, perhaps a reprimand was in order. However, she noted, “I would not fire somebody for something like that with no prior history and no prior issues, which apparently was the case.”

A Chilling Effect?

EEOC Commissioner Chai Feldblum is also no fan of zero-tolerance policies. In fact, she has suggested that such policies can actually make it more difficult for employers to fight workplace harassment.

At first glance, that statement might sound like a head scratcher amidst the #MeToo movement. But upon closer examination, not so much.

“A lot of people don’t want their co-worker fired. They just want the conduct to stop,” said Feldblum. So with a one-size-fits-all enforcement approach, some employees will opt not to report the harassment under the belief that termination will be the automatic result. This leads to a worst-of-all-worlds circumstance where a situation could escalate, or occur with other employees, that might otherwise have been nipped in the bud.

Another problem with these policies, Shea noted, is that they may cause management—or even HR—to pull its punches. For instance, she explained that an employer with a zero-tolerance policy, when confronted with an allegation against a good employee that does not seem too serious, might opt not to investigate. But as Shea points out, a failure to investigate means an employer will never know if an allegation is true, which she calls, “a terrible outcome!”

Oftentimes, nuance is required. This includes the opportunity for a frank conversation and/or progressive discipline options. But with a zero-tolerance policy, that nuance is often lacking and unintended consequences can result.

And Finally…

The motivations behind many of these “zero-tolerance” policies are good. As Shea readily acknowledged, “[Employers] just want people to understand you don’t do this in our workplace.”

The trouble is it’s an expression that can be interpreted in different ways. Much like “support the troops” stickers meant different things to different people during the height of the Iraq War (e.g., support the troops by supporting the war or support the troops by bringing them home), employees and employers have differing views upon hearing the “zero-tolerance” phrase.

Shea explained that some employers may view it as meaning we have zero tolerance for any harassing behavior so you may get any of the following penalties:

  • A write-up;
  • Counseling;
  • A final warning; or
  • Termination.

In a way, that’s still zero tolerance, but that’s not how anybody sees it. For instance, according to Shea, employees reading that in an employee handbook would interpret zero tolerance as meaning if there is any harassment of any kind, “I am fired.” And that’s what leads to incidents going unreported.

For more coverage of zero-tolerance policies, listen in to our recent XpertHR podcast.

What do you think of zero-tolerance policies? Let us know by leaving a comment below.

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