Two lawyers who represent employees have responded to our request for comments made in our recent post entitled “Zero Tolerance” And “Broken Windows?”

And for the most part they are not that keen on the idea of a “zero tolerance” policy, for reasons which they describe below.  But they rightly note that the issues raised are complex.

Richard Seymour, a DC-area lawyer:

“I represent employees complaining of sexually or racially hostile environments, as well as employees accused of harassment. The column seems to me to raise four issues.

Say no : French translation for yes and no speech bubbles

First, many workplace and school behaviors and statements may make some employees or students uncomfortable, but fall far short of creating an actionable hostile environment. The legal standards for hostile environments are high, and many complainants fail to meet it.

The behavior or statements must be (1) objectionable to reasonable persons in the position of the complainant, (2) they must be subjectively objectionable, (3) they must be either severe or pervasive, and (4) they either must be perpetrated by someone with effective authority to make the employer or school responsible for his or her actions, or the employer or school must have earlier known or should have known about the conduct through observation or complaints by the complainant or others and failed to take reasonably adequate preventive action or failed to increase the severity of the actions taken if the earlier steps had not succeeded in stopping the conduct or failed to have an adequate program to prevent harassment or to resolve complaints when they occurred.

This is very far from a knee-jerk standard of legal liability, and it is clear that employers and schools are not insurers against unforeseen bad things happening.

Many complainants and their counsel make the mistake of thinking that employers and schools are insurers against unforeseen bad things happening. This cuts short their case development, stops them form looking into facts that might establish actual legal liability, and leads to a lot of grants of summary judgment.

Second, employers and schools need to be able to impose rules whereby they can stop offensive behavior before it becomes legally actionable. Otherwise, the law would become a strict-liability proscription, and that is far from the model set out by the Supreme Court in the Faragher and Ellerth cases.

Third, the rules employers and schools establish should be reasonable. Phrases like “zero tolerance” lead to mindlessness and enormous loss of respect when blindly applied, as they so often are.   We all remember the six-year-old expelled from his public elementary school because he brought a soldier action figure to “Show and Tell” class, and it had a tiny replica of a gun. The school administrators became the laughingstock of the nation.

Recently, a large number of Harvard Law School professors sent an open letter to the Harvard University community objecting to Harvard’s acceptance of a code of conduct denying elementary process to students accused of sexual misconduct. The code was in fact so tilted towards the accuser that there was no semblance of fairness to the accused.  Harvard claimed it had been bullied into accepting the code by officials of the U.S. Department of Education who had threatened a cutoff of federal funding, and the law professors rightly rejected that excuse as cowardly sniveling. Harvard had a ‘teaching moment’ when it could have stood for the importance of fair processes, and it failed abysmally. Employers face the same risk of injury to reputation.

Harvard students badly needed a ‘teaching moment.’ Students were quoted as saying that only the accuser needs to be protected, that the accused must be condemned, and that nothing should stand between the accusation and condemnation. This is a totalitarian sentiment familiar to those who know the history of totalitarian regimes in the Twentieth Century, and familiar to those who have read Robert Bolt’s play, “A Man for All Seasons,” about Thomas More (St. Thomas More to many of us, but not to the King’s backers).

Fourth, it is not easy to mount a defense for an employee or student unjustly accused. There is no ‘reverse Title VII’ or ‘reverse Title IX’ guaranteeing basic fairness. Each has a contract of sorts, and courts are fond of saying that the covenant of good faith and fair dealing is implied in every contract.

Say no : The Big Debate Concept text on background Stock Photo

Courts unfamiliar with the First Amendment ban on the establishment of religion and that therefore worship at the altar of ‘At-Will Employment’ are fond of saying that the covenant does not apply to at-will employees, because that would interfere with the principle of at-will employment.

It is necessary to find an aspect of employment other than termination to try to bring in that concept, in order to avoid violating such a rule. An employee or student falsely accused sometimes has to rely on sharp differences between the treatment of female and male accusers, or sharp differences in the treatment of male and female accuseds, in order to make a straightforward Title VII or Title IX claim.

An example is the recent Second Circuit case involving Title IX and a school’s mistreatment of male students accused by a female professor, Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81 (2d Cir. 2011). The court reversed the grant of summary judgment against the Title IX male student-plaintiffs

Sexual harassment and sexual misconduct are very serious problems, but they have to be tackled with judgment and fairness to all.”

Jon Green, a NYC-area lawyer:

“I agree with much of Rick’s post (I am a plaintiff’s attorney also). His points were similarly made in an op-ed piece in the NY Times [recently] about higher education’s treatment of sexual assault allegations by female students where victims are treated poorly by clueless educators but at the same time, false accusations are also a real problem.

Zero tolerance does not make sense for a lot of reasons.

First, infrequent light sexual banter or jokes do not make for a hostile work environment.

Second, the banter or jokes not only have to be severe or pervasive but also unwanted. So an employer should not be punishing employees who tell an infrequent dirty joke or make an infrequent sexual remark. We are all human and to have a pristine work place is just unworkable. At the same time, employees should be counseled in a friendly way that a sexualized work place is not acceptable and if it continues or becomes more frequent, then disciplinary action may be necessary.  Ultimately, harassment policies and training, training, training will be the best line of preventing harassment in the work place and lawsuits.

I have more sympathy for zero tolerance (but still do not totally embrace it) regarding racial/ethnic epithets because they are intended to demean and wound people of color or of different national origins. While African-American employees may refer to each other with the N-word in the workplace as part of their everyday vernacular, to me that is inexcusable because it only adds fuel to the haters and creates conditions that lead to polarized work forces and lawsuits.

Employees who use epithets regarding their own status should be strongly counseled not to use them (while acknowledging that this is their everyday vernacular but not on the job) and if they do it again they will be subject to discipline including termination.

I agree that strict adherence to zero tolerance is counter-productive but at the same time, the best way to avoid destructive lawsuits is training, prevention and to nip issues in their infancy.”