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Cold hard world of zero tolerance

Is a hug a hug? Or grounds for termination?

I started to write this blog about sexual harassment. (That got your attention, right?) But then I saw a case from my own state of Washington concerning a bank's employee credit card use policy.

"What's the connection?" you wonder. The general point to draw from both topics is that zero tolerance policies are extremely difficult to enforce. Often they come back to bite the employer in an uncomfortable place.

"No Offensive Touching"

Sex harassment is conduct of a sexual nature that is unwelcome and offensive to a reasonable person. It can be verbal, physical, or graphic.

This is all familiar stuff. It's been 50 years since Title VII prohibited sex discrimination in employment, and 22 years since Anita Hill's Senate testimony about sex harassment brought this aspect of discrimination to the forefront of public attention. Most employers conduct regular anti-harassment training. Some states--California, for example--require it.

Yet sex harassment claims are not decreasing.

The problem often lies in that "reasonable person" standard. What is unwelcome and offensive to one person may not be unwelcome and offensive to another. Another complication, regarding the source of behavior: An employee might find one person's conduct inoffensive, while similar conduct from someone else is unwelcome.

Let's look at physical conduct: touching. Some people are "huggers," and do not object to a friendly hug from a co-worker. Others think hugs in the workplace are inappropriate at all times. An employee might not be bothered by a peer's hand on her shoulder, but might be creeped out if a much older male boss touched her in this way.

It's all in the eye of the beholder, that "reasonable person" the law aims to protect from harassment.

Banks might be tempted to adopt a zero tolerance policy with regard to offensive touching in the workplace. The threat of termination will certainly be effective in chilling any physical contact between employees. But what kind of work environment would be the result? Do we really want to go to work in a place where we move around with our arms pinned to our sides and eyes averted?

Spotty enforcement draws age discrimination claim

Now let's turn to the credit card policy case.

Sharon Brockbank worked for Bancorp as a trust officer. She was fired for charging her Verizon cellphone family plan--which included lines for her children, internet service, and anti-virus software--to her corporate credit card. Bancorp claimed that this violated its zero-tolerance policy for credit card misuse. After she was terminated, her accounts were distributed to the remaining trust officers, most of whom were younger than Brockbank, who is over 40.

The Ninth Circuit Court of Appeals, ruling that Brockbank could proceed with her age discrimination claim, found evidence that Brockbank's supervisor had misused his own card to purchase alcohol and excessive client gifts, for which he was not disciplined. There was also evidence that other employees were not disciplined for making personal purchases with their corporate cards.

The court also found that the bank's zero tolerance policy for credit card misuse contradicted the credit card policy itself, which allowed charges for "non-reimbursable personal expenses incurred in the course of business activities that are incidental in nature and where it is not otherwise practical for the employee to pay for those expenses separately."

Brockbank claimed that her charges were not solely personal because she used her cellphone, computer and internet connection when she worked from home.

Practice pointers

Zero tolerance policies are attractive because they create bright-line rules. They broadcast that an employer takes the issue very seriously.

However, they have significant drawbacks:

1. They are very difficult to enforce consistently. Managers will always want to make exceptions for "special" situations.

2. They are more likely to draw a legal challenge than rules enforced by progressive disciplinary steps.

Give yourself and your employees a break: Allow some leeway in enforcing employment rules, and keep termination as an absolute last resort, rather than an automatic punishment.

Marian Exall

Marian Exall (marian.exall@gmail.com) is an employment lawyer and HR professional with more than 25 years' experience advising banks and other employers on compliance issues. She is a principal and co-founder of Employment Law Compliance, Inc. which provides HR compliance solutions to banks exclusively through the American Bankers Association. She is a frequent speaker and writer on human resources compliance in the banking industry, including in ABA Banking Journal, on ABA Telephone Briefings, and at national and state bankers' association conferences. For more information on this or other employment compliance topics, please call Employment Law Compliance at 866-801-6302 or go to www.employlawcompliance.com.

Marian also writes fiction. Her latest novel is a mystery called A Slippery Slope. For more information and to order, go to www.marianexall.com

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