Re-Thinking Zero-Tolerance Policies

Do you have a zero-tolerance policy in your workplace? Many employers say they do.  Zero-tolerance has become a very popular phrase in the workplace and in schools.  Why would you have a zero-tolerance policy? Usually it means you want to stop something that you think is very bad, and you want to state very loudly and publicly that you’re doing something about it. But do zero-tolerance policies work? Let’s have a look, after the jump…

(image from quotesgram.com)

What exactly is a zero-tolerance policy anyway? The term may seem self-explanatory, but commonly used terms may mean different things to different people. According to dictionary.com, a zero-tolerance policy is one that “applies strict, uncompromising enforcement of laws and rules”. According to a 2006 Task Force Report by the American Psychological Association, such a policy “mandates pre-determined consequences or punishments for specific offenses that are intended to be applied regardless of the seriousness of the behavior, mitigating circumstances or situational context”. In the workplace, zero-tolerance is often seen as a way to eliminate or deter undesirable behavior in employees, and imposes automatic punishment of those who violate rules, and prevents managers from bending the rules.

What advantages does zero-tolerance provide employers? Perhaps first and foremost, they apply uniformity, consistency, and predictability–assuming that employers communicate the policy effectively and apply it consistently. They might then convey a strong message that the employer is taking a serious stand against violence, bullying, discrimination, drugs in the workplace, or whatever behavior is the subject of the policy. Arguably, it’s less work — at least in the short-term.

Inherent in almost any zero-tolerance policy are some or all of the following underlying assumptions:

• Zero-tolerance policies provide the necessary, forceful response to the mounting crisis of workplace harassment, bullying, violence and a host of other escalating issues;
• Zero-tolerance policies provide improved and/or increased consistency in discipline;
• Terminating violators of such policies provides a safer workplace;
• Zero-tolerance policies deter and/or reduce violent behavior (or harassment, bullying, drug use, etc.).

Whether these assumptions are true the two goals that most of them share are that of creating a safer workplace, and minimizing liability. With these goals in mind, we must ask again, do zero-tolerance policies work? Let’s look at some examples:

Smith v Lockheed Martin Corp. 644 F.3d 1321 (11th Circuit 2011) a zero-tolerance policy that banned discriminatory behavior, specifically e-mail transmission of racial slurs. Perhaps most noteworthy is the way in which this policy arose in the first place. In 2003 a deadly shooting occurred at one of Lockheed’s plants, where a self-declared white supremacist fatally shot 5 employees, wounded many others and then killed himself. Fast forward a few years. Lockheed had in place a policy that required employees to report any racial slurs sent by email to supervisors, who in turn reported them to Human Resources. Punishment would follow if an investigation substantiated the allegations. In this case, a white supervisor sent a racial joke via email, and all the white employees who either sent or received it were terminated. One African-American employee who received the same email was reprimanded but not terminated. Not much later, some African-American employees circulated another racial email. Those employees received temporary suspensions.

It’s not hard to see what was wrong here. Lockheed claimed to have a zero-tolerance policy, but clearly did not apply it consistently, and clearly allowed itself to be motivated by the racial considerations. The 11th Circuit Court of Appeals sided with the terminated employees for that reason. One lesson to be learned: if you are going to implement a zero-tolerance policy, you had better apply it consistently or you risk: a) liability for the very discrimination you thought you said you would not tolerate and; b) litigation–another result you were trying to avoid; and  c) your employees not taking your policies seriously. What else might be wrong with what Lockheed did? Clearly Lockheed wanted to do anything possible to avoid another workplace shooting and, particularly, to avoid any other racially motivated violence. Yes, that is a very laudable goal, one that all employers should share.  Yes, employers should also want to eradicate any type of racial discrimination. This policy, however may have actually been a bit too sweeping. How so? While perhaps an employee who sends a racially prejudiced email should be punished, should one be punished for merely receiving the email?  Furthermore, while punishing an employee for circulating such an email may be appropriate, in the absence of similar past behavior, is automatic termination the right response?

How about another example? A few months back I posted here about Ray et al v Wal-Mart Stores, Inc. That matter was actually a consolidation of two cases involving workers who apprehended would-be thieves who it so happens also had weapons and were threatening others with them. The workers were fired because their actions in apprehending the criminals violated Wal-Mart’s workplace violence policy. What’s wrong here? Do we want our workplace violence prevention policies to apply in such a way that an employee who attempts to defend him/herself or others is automatically terminated? It’s one thing if the worker could have safely retreated and called the police, but instead decided to play vigilante, but what about a worker who had, or reasonably perceived s/he had, no choice? Is that the type of employee you want to terminate? Is that the message you want to send your employees?

While I am sure you can begin to see some of the potential problems with zero-tolerance, we will take this up again next week, so until then, stay tuned!

Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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