Beware of ‘Zero Tolerance’ Policies, EEOC Commissioner Warns

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By Chris Opfer and Paige Smith

Businesses that implement “zero tolerance” policies in the wake of the #MeToo movement may be making it tougher to combat sexual harassment on the job, Equal Employment Opportunity Commissioner Chai Feldblum (D) said today.

Employers have been trying to enhance protections against workplace harassment in response to swirling public attention to the issue. But they can go overboard by treating all bad behavior as a fireable offense, Feldblum said at an EEOC event.

“That will not only be correctly perceived as an unfair system, but it might also chill reporting,” Feldblum said. “A lot of people don’t want their co-worker to be fired, they just want the conduct to stop.”

The EEOC, which enforces federal workplace discrimination laws, has turned its attention to sex harassment after high-profile allegations of sex assault or harassment against public figures like Hollywood mogul Harvey Weinstein and journalist Charlie Rose. The agency filed eight harassment lawsuits over a recent three-day span.

The wave of harassment allegations that followed the Weinstein saga has sent businesses scrambling to beef up protections for workers. But Feldblum said bad behavior on the job should be addressed on a sliding scale.

“A lot of people like to use the term zero-tolerance policy,” Feldblum said. “What we like about that term is that it communicates that there will be zero tolerance for any form of unwelcome behavior in the workplace. The whole point is that you’re nipping bad behavior in the bud. An employee should understand that it does not mean that every type of conduct results in the same consequence, for example, termination.”

Guidance Still on Hold

The EEOC in 2015 convened a harassment task force of attorneys and employment law scholars. The group helped develop harassment guidance and a “respectful workplaces” training program shortly before media reports shined a light on the allegations against Weinstein.

The guidance is on hold as a result of political squabbling over President Donald Trump’s nominations for EEOC commissioner seats and his pick to fill the agency’s general counsel role. A draft version covers harassment on various bases, including sex and race, and weighs in on whether sex bias includes sexual orientation and gender identity bias.

Feldblum’s comments echoed a June 2016 report from the harassment task force, which stressed caution about zero-tolerance policies. The task force said those policies are “misleading and potentially counterproductive.”

“Although not intended as such, the use of the term ‘zero tolerance’ may inappropriately convey a one-size-fits-all approach, in which every instance of harassment brings the same level of discipline,” the task force said. The group added that such a policy “may contribute to employee under-reporting of harassment.”

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