Why Zero Tolerance Is A Bad Anti-Harassment Policy

By Audrey Roofeh

One question I've heard often recently is "what should the response should be to workplace harassment  allegations?" It's easy to say zero tolerance, but turning that into a procedure that works for an organization is not. A blanket statement of zero tolerance doesn't address the variety of actions that fall under 'unwelcome or offensive conduct based on a protected characteristic.'  There's a wide range of behaviors that fall under the category of harassment - from crass jokes to sexual assault, and it doesn't make sense to treat all those with the same response.  What we can do is what the EEOC recommended in its 2016 report - create a system of proportionate discipline, not 'zero tolerance.'  Here is how the EEOC put it:

Accountability requires that discipline for harassment be proportionate to the offensiveness of the conduct. For example, sexual assault or a demand for sexual favors in return for a promotion should presumably result in termination of an employee; the continued use of derogatory gender-based language after an initial warning might result in a suspension; and the first instance of telling a sexist joke may warrant a warning.

Distinctions of this kind are important. First, they create the basis for different levels of discipline that managers can understand and implement consistently, based on a spectrum of behavior, from thoughtless and insensitive to malicious. Second, they afford remedies that are appropriate to differing conduct. For the worst conduct, termination is appropriate. But in many situations - the least egregious - a person may not understand or be aware that their conduct was unwelcome or offensive, and a complainant may seek an apology or just for the behavior to not happen again. In a workplace with a zero tolerance policy, a person may be reluctant to complain about this kind of conduct for fear that the only response will be termination or suspension.

Ideally, managers should be equipped to have conversations about how unwelcome and offensive conduct about sex, race, religion or other protected characteristics are not part of the workplace culture of inclusion. For too long, harassment has been a third rail, especially in workplaces, making it difficult to talk about and address. According to the EEOC, the least common response to harassment has been to take some formal action.  Generally, individuals who experience  sex-based harassment in the workplace "avoid the harasser (33% to 75%); deny or downplay the gravity of the situation (54% to 73%); or attempt to ignore, forget or endure the behavior (44% to 70%)."

There's no denying that it's not easy to talk about workplace harassment, but a proportionate discipline policy is a good way to open the door to conversations that can be hard to initiate. When businesses provide guidelines that delineate inappropriate behavior, and create a mechanism for a prompt and proportionate response, it sends a signal to staff that harassment is an issue that's taken seriously, that it covers a wide range of behaviors, and it gives managers tools they need to put policies into action.