If anti-harassment policy is broader than law requires, be prepared to enforce it
Q: Our policy against harassment says we will take disciplinary action for any inappropriate workplace conduct, regardless of whether it violates the law. An employee complained of coworkers yelling at him, but it doesn’t seem connected to a protected status, so do we have to take action?
A: If you promise that you’ll provide greater anti-harassment protections than what the law requires, you need to be prepared to follow through. According to a recent federal district court decision in Connecticut, a promise to take disciplinary action regardless of whether the conduct violates the law could give employees the ability to bring a breach of contract claim if action isn’t taken. The employer required employees to sign an employment agreement that included a non-harassment policy stating that “appropriate corrective action will be taken, regardless of whether the inappropriate conduct rises to the level of any violation of law.” A gas station attendant complained that coworkers and supervisors harassed him on the basis of his disability (Tourette syndrome). He eventually sued the company, bringing claims not only under the Americans with Disabilities Act (ADA) but also for breach of contract. The court said the company’s “super” policy against harassment may have given the employee extra rights, and sent the case on for trial (Marini v. Costco Wholesale Corp., D Conn, Dec. 2014).
Tips: There’s nothing wrong with holding employees to a higher standard of conduct than the bare minimum required by law (and in fact we recommend doing so), but you need to give yourself leeway in enforcement. For example, you might say, “We expect employees to treat each other and our customers with courtesy and mutual respect.” If someone violates the policy, you can take appropriate action, as long as you treat people consistently and their conduct isn’t otherwise protected. For language addressing your legal obligations to prevent and address harassment, see our Model Policy, “Policy Against Harassment”.