A Little Common Sense, Please!

The #MeToo movement has now become a social norm since it first went viral on the pages of Instagram, Facebook, Twitter, and Snapchat. And that's a good thing. The days of writing off unacceptable behavior as "boys will be boys" or "paying your dues" are over. However, the pendulum has swung so far that the movement has left unintended victims in its path – good employees who had a moment of less-than-perfect judgment.

With public outcry at every turn, employers seem to believe that immediate, permanent action must be taken the moment an allegation is made. Or perhaps, employers don't want to do the dirty work and get into the weeds when a complaint arises. The most common response these days seems to be the "off with their heads" approach where the offending employee is summarily terminated. Employers often think that this insulates them from liability and public backlash. Not so fast. There are pitfalls to this zero-tolerance approach. Such as:

  • It Can Open A Different Door To The Creative Plaintiff Lawyer. The standard for a prudent employer is to perform a swift and impartial investigation into the allegations. Without reasoned findings, it can appear that the reason for termination was pretextual (especially if the accused is also in a protected class), which can then form the basis for a wrongful termination claim.
  • Employers Lose Good Employees. Employees are a very valuable asset to any organization. Employers know this and invest time and resources into their personnel; employees often return the favor by remaining loyal to their organization. Yet that investment – both by the organization and the employee – can all be for naught if an employee is immediately terminated due to an accusation of unwelcome or inappropriate conduct, irrespective of the seriousness of the behavior.
  • It Creates A Lousy Place To Work. Workplace culture and environment is an important factor in employee retention. We often spend more time with our co-workers than we do with our own families. It is impossible to have a healthy, happy workplace if employees are constantly looking over their shoulders or afraid to be friendly with their co-workers. Ultimately, the punishment must fit the crime and the law does not restrict an employer's option to termination alone. In fact, depending on the nature and severity of the conduct, other solutions are readily available – such as training, warnings, etc. – which can be highly effective at addressing improper behavior.
  • It Can Be Chilling. A misplaced zero-tolerance policy can result in thwarting credible reports of harassment. We often hear from victims that they are not looking to have the harasser fired – they just want the situation fixed. If victims are concerned that their reporting may result in a co-worker's termination, they may think twice about raising legitimate concerns.

Our introductory edition of Employment Awareness articulated our principle when it comes to advising employers: Treat your employees with dignity and decorum. All employees. And that includes employees accused of harassment, who deserve a careful and thorough investigation, and well-considered discipline, where appropriate. A poorly enforced zero-tolerance policy is not good for you, it’s not good for your employees, and it’s not good for the bottom line.

Authors:

Stephanie M. Stringer, Hall Griffin, Associate

John A Cone, Jr., Hall Griffin, Of Counsel

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