“Zero Tolerance” – is it an ambiguous term, we asked recently?   Is it a synonym for “non-thinking,” as one reader suggested?

Should it be reserved for serious violations?   Does “one size not fit all?”

New Racial Harassment Case

On October 4th, we posted about a new EEOC Title VII race and national origin harassment lawsuit against a major transportation and distribution services provider from New Jersey.

In this case the EEOC accused the management of using “racial language” such as “calling African-American employees ‘ass monkeys,’ making comments about blacks swinging through the trees, and describing African-Americans as lazy and dependent on the government.  In addition, EEOC alleges a stuffed monkey was displayed in the workplace and at times had cord or a rope tied around its neck or appeared to be hanging.”

We agree with the EEOC attorney who said that “lack of a proper policy and procedure manual, lack of training for all employees and managers, lack of an appropriately trained HR manager, and lack of a top down culture of zero tolerance of harassment of any sort is indeed a recipe for disaster.”

However, is “zero tolerance” an appropriate standard?  Does it sweep too broadly?  There is disagreement about its application as a workplace policy.

So we revisit the theory of “Broken Windows” as applied to the workplace, which we wrote about some time ago, and see how/if it works with a “zero tolerance” policy.

The Broken Windows Theory

Last February we asked:  what if employers actively discouraged, showed disapproval of or otherwise rebuked every stray or trivial unwanted comment or act that did not rise to a legally-actionable level?  Would this cause a decrease in actionable harassment or a less hostile workplace?

Is this akin to “zero tolerance?”  Is it different?  Is it workable?

We asked readers to consider the “broken windows theory” posited in 1982, at perhaps the height of urban blight and crime.  It was put forward by a couple of professors who argued that if an urban environment was kept well-ordered and every “broken window” repaired (i.e., every act of public disorder addressed), this might stop an escalation into more serious crime – “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”

Mayor Giuliani in NYC heartily endorsed and implemented this theory — now it has been embraced by Mayor DiBlasio, likely because his new police chief is the same one employed by Giuliani, and who adopted it in the first place – William Bratton.

Does This Theory Have Any Application To The Workplace?

We wondered in our earlier posts (without addressing or endorsing the theory as it applied to crime, or to the reasonable criticism surrounding it), if it nonetheless could be usefully applied to the workplace.  Would it, in fact, decrease incidents of actionable harassment if we stopped or discouraged even sub-actionable unwanted comments or behavior?

At what point does sexual banter, teasing or “roughhousing” become sexual harassment sufficient to qualify as a hostile work environment?   And does a work environment which permits or turns a blind eye to sexual banter inevitably become a hostile work environment?

We wrote on December 16, 2013 about a case where in the “sexualized [work] environment” of a Canadian mattress store “crude banter was the norm.”  A female employee admitted that she “joked about penis size and sex, along with everyone else.”  This led to her losing her subsequent harassment claim.

Was this decision correct?  Or fair?

In January we wrote a post entitled Can Sexual “Banter” Morph Into Sexual Harassment? The Stakes Are High, and discussed whether the “Broken Windows” theory could/should have any application.  We asked whether there was a “slippery slope” to sexual harassment.  We printed loads of reader comments.

A Year Later

After a year, we would like to ask readers to comment again on this new federal case, the “broken windows theory,” and/or our initial query:   At what point does sexual banter, teasing or “roughhousing” become sexual harassment sufficient to qualify as a hostile work environment?  And does a work environment which permits or turns a blind eye to sexual banter inevitably become a hostile work environment?

Some readers commented, with one saying that “zero tolerance programs are a bad idea”:

Porsha Hicks-Plant, an accountant in Aurora, Colorado:

“I must say I’m disappointed at this federal court but not shocked given the recent rulings of other cases involving race that have created slippery slopes. However, I am encouraged to know that the EEOC is taking a stance on the use of the “N-word” and the hostility it creates in the work place.   What ever happened to zero tolerance in the workplace?”

Dianne Sutton, an HR consultant in Frederick Maryland:

“I too am disappointed. But not surprised.”

Linda Rose-Winters, a director of diversity programs in the LA area:

“I am also not surprised. From my perspective, the current discourse on the use and prevalence of racial slurs and racially-biased behaviors has not even scratched the surface of the depth of these issues and the lingering harm and long term social-emotional effects they cause.

We can change and enforce laws and policies, but how do we change mindsets and long in place habits of mind?”

Marc Brenman, Instructor at Morgan State University, Olympia, WA:

“Porscha, zero tolerance programs are a bad idea because they remove judgment from factfinders and adjudicators, take away due process, don’t allow for progressive discipline, and remove room for explanations and amelioration.

Here’s just one example:   Sometimes young Black men call each other the N-word. Under a zero tolerance program, whichever one used the word (or both!) would be fired. If the program were implemented in such a way that only whites could be punished for using the word, then it would be challenged (and would fall) because it wouldn’t pass a strict scrutiny test under the Constitution.

Instead, it is logical, and more legally sound, to go two possible directions:

1.  Hate crimes laws, where a racially charged utterance might enhance punishment when used during a crime.

2.  In an analogy to sexual harassment law, where frequency, severity, egregiousness, and unwelcomeness are factors.”