Just Say 'NO' — To A Zero Tolerance Policy?

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.

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...