Today, zero tolerance policies are everywhere. Corporations, government agencies and universities are adopting them en masse. Not only are they a practical tool for combating problems, they’ve become a political tool, as well. "Zero tolerance means different things to different people," states Stephen Hirschfeld, senior partner at the San Francisco law firm, Curiale Dellaverson Hirschfeld Kelly & Kraemer, LLP. "Two companies with the same policy might deal with a problem in radically different ways. Zero tolerance is a concept that sounds straightforward and simple, but is inherently complex."
Crafting a zero tolerance policy certainly sounds tantalizingly simple. Prepare a written statement—perhaps a few sentences—stating that the organization will not tolerate drugs, harassment, violence, fraud, whatever. Then post it on bulletin boards or online. But beyond the basic statement lies a landmine of policy, legal issues, cultural factors and perceptions. Navigating through this netherworld requires patience, persistence and intelligence. "Creating a policy is the easy part. Putting teeth in it and managing problems—when they occur—is the challenge," explains David Ulrich, a business professor at the University of Michigan.
To some extent, zero tolerance policies in the workplace reflect a larger societal backlash against unwanted behavior and actions. By the early 1990s, schools, professional sports leagues and voters began expressing their discontent with crime, drugs and other problems. Corporations soon began to follow the lead. But zero tolerance means different things to different people ... and companies. In the simplest sense, it’s nothing more than a statement saying that a particular behavior won’t be tolerated. Of course, how a company acts in terms of specific policy can vary greatly. At one firm, a first offense might warrant termination, while at another it might elicit a warning.
Where exactly does a company begin? What kind of expertise is required to create a fair and legal solution? And how does human resources fit into the overall equation? The answers aren’t completely obvious. "There are many nuances to designing an effective zero tolerance policy," says James N. Madero, a San Diego psychologist and workplace violence prevention specialist. "It requires a major commitment on the part of a company."
Workplace problems exact a heavy toll.
It’s no secret that violence, drugs, harassment and discrimination are part of the workplace. Over the years, each issue has attracted plenty of attention, and forced HR to search for solutions. In some cases, organizations have turned to security-based solutions to restrict entry to work areas. In other instances, companies have implemented policies—ranging from drug testing to diversity training—to eradicate incidents and educate employees.
It’s not difficult to understand why. The fallout from an incident—or perceived incident—can send shockwaves through a company, and ultimately affect performance and productivity. The negative publicity that’s generated from a high-profile incident can become a nightmare. And finally, an incident can hit an enterprise straight in the pocketbook. When Texaco Inc. settled its highly publicized racial discrimination suit last year, it coughed up a record $176.1 million. It now has a zero tolerance policy in place.
In recent years, courts have ruled that employers are responsible for the actions of their workers while on the job, and that employers have a duty to keep the workplace safe and free of illegal activity. But that’s easier said than done. "It’s easy to state that you have a zero tolerance policy; it’s another thing to really think through what it means," says Hirschfeld. "Does it mean ‘one strike and you’re out?’ Does it mean that if you’re caught making a lewd remark, you’re guilty of sexual harassment and terminated? Too often, policies backfire because they’re not properly crafted or haven’t been thought through all the way."
To some extent, how an organization approaches a specific problem depends on the issue at hand. A zero tolerance policy on drugs is fairly easy to define and enforce. If a person tests positive for an illegal substance or is caught abusing alcohol on the job, a warning or termination can result. In most cases, a violent act results in injuries and involves witnesses. But sexual harassment and discrimination often delve into a vast swampland of accusations, charges and countercharges. Trying to separate claims from reality and mete out appropriate punishment is a vexing task. What’s more, a wide range of conduct is possible, from offensive comments to outright action. Treating everything the same is a mistake.
"It isn’t possible to develop a monolithic zero tolerance policy to cover everything," Hirschfeld explains. "Each problem requires specific policies and solutions." Adds Ulrich: "It’s one thing to state that the organization will not tolerate any form of undesirable or illegal activity, but it’s impossible to apply a standard punishment or solution for every incident. A policy needs teeth, but it also needs to be fair."
Unfortunately, many organizations don’t take the issue seriously until it’s too late. A few years ago, Mitsubishi Motors found itself facing serious charges about endemic sexual harassment from employees. Among other things, more than 300 workers claimed that women at the firm’s Normal, Illinois, manufacturing plant were asked by male co-workers to bare their breasts and were fondled. They also charged that photographs taken at private parties outside the workplace—many of them depicting nude dancers and plant employees performing sex acts—were routinely displayed at the office.
Before long, the Equal Employment Opportunities Commission entered the picture, filing charges of its own. Mitsubishi orchestrated a hard-line response to the inquiry, even going so far as to pay employees to hold a rally outside the Chicago EEOC office. In the middle of the fracas, a company spokesperson calmly stated, "Our policy with respect to sexual harassment is zero tolerance." But after a two-year battle against federal charges of widespread sexual harassment, Mitsubishi Motors settled the case for $34 million—the largest sexual harassment settlement in history.
Mitsubishi isn’t alone. The U.S. Navy, Wal-Mart, Eastman Kodak, Domino’s Pizza, Honeywell and State Farm Insurance have all found themselves at the center of major disputes focusing on harassment or discrimination. Some of these firms have paid out multimillion settlements despite stating publicly that such behavior isn’t tolerated and that zero tolerance policies were in effect.
Some argue that a zero tolerance policy without any teeth is worse than no policy at all. Not only can such an approach cause employees to blatantly dismiss rules and regulations, it can drive such behavior underground. While a CEO is criticizing discrimination, employees are simply more careful to hide their activities or cover their tracks. Helen Hemphill, a Bellevue, Washington psychologist and consultant who works with companies to develop policies, believes that many organizations live in a perpetual state of denial that it can happen to them. "People become uneasy and their eyes glaze over. Too often, management states that it wants to do something to address the problem but then it puts the issue on the back burner."
Bad things happen to good organizations.
Just after dawn on August 20, 1986, a part-time letter carrier about to be dismissed from the job walked into a post office in Edmond, Oklahoma, and killed 14 fellow workers. That incident, combined with others that claimed the lives of 29 employees over the next decade, led the U.S. Postal Service down the road of introspection. Despite being one of the safest places to work (the agency is the largest civilian employer in the U.S. with 775,000 workers, but ranks low in terms of violent incidents), the numbers simply weren’t acceptable. Neither was the growing public perception that the post office was a dangerous place to work.
Following a 1991 shooting in Royal Oak, Michigan, a team of management and union officials representing the Postal Service issued a joint statement deploring the violence. That was the first step in addressing the problem, which increasingly took a toll in the form of stressed and depressed employees, absenteeism, and productivity declines.
Then, in 1993, Postmaster General Marvin Runyan decided that a radical overhaul was in order. "This is a time for a candid appraisal of our flaws and not a time for scapegoating, fingerpointing or procrastination," he stated. Later that year, the USPS instituted a zero tolerance policy, and immediately rolled out training aimed at conflict resolution and employee empowerment. In addition, the Postal Service began conducting detailed background checks on applicants, and expanded its employee assistance program to provide marital, financial and legal counseling.
Today, the violence prevention efforts of the USPS have become a model for Corporate America. It has established an eight-hour course that focuses on recognizing warning signs of violence, practicing proactive prevention techniques, and educating managers and line employees about laws, policies and procedures. In 1996, the agency’s 61,000 supervisors participated in the program at a cost of about $15 million.
The postal service also has established a detailed crisis management plan and developed a highly trained threat assessment team to respond to potentially dangerous situations. It’s now introducing a specialized four-hour training program that helps supervisors handle terminations and separations more effectively. That, combined with employee surveys and ongoing symposiums, has made the program a success.
Over the last three fiscal years, the USPS has witnessed a steady decrease in assaults. Compared to the previous year, assaults dropped 10.9 percent in 1996, 6.9 percent in ’97, 13.8 percent in ’98, and had dropped 24.5 percent through February of ’99. In addition, 31 percent of employees feared that they could become a victim of violence in 1994. By 1998, the figure had dropped to 16 percent.
"There is absolutely no way to eliminate all workplace violence," says Suzanne Milton, manager of the workplace environment improvement program for the U.S. Postal Service. "But it is possible to take a stand on the issue and back it up with training and assistance programs that really work. Letting people know that certain behavior is unacceptable and that anyone who engages in such conduct will be appropriately disciplined sends a strong message out to the workforce."
Corporate policies don’t always add up.
According to Hemphill, creating an effective zero tolerance policy centers on three concepts: developing the policy and creating a means for enforcement; publishing written standards for what behaviors are and aren’t appropriate; and offering skills training to enhance desired workplace behavior while changing inappropriate behaviors and actions. "Too often, companies spend hundreds of thousands of dollars to create a policy, but do little or nothing to enact it or ensure that the mechanisms are in place to make it work," she states.
Much of the problem lies in the reality of running a business. In one instance, Hirschfeld spent weeks working with a Fortune 500 manufacturing company and its union to develop a zero tolerance policy on drugs and alcohol. Although the union argued for mandatory counseling rather than termination for a first offense, the president of the company felt strongly that a one-strike-and-you’re-out policy was essential. And that’s exactly what the firm enacted.
Six months later, a key employee tested positive in a random drug test. A second test confirmed substance abuse. Faced with automatic termination of the employee, the president backed down, saying that the worker was one of the company’s best employees, that he had a family to support and that it was essential to cut some slack.
"After a year negotiating and establishing a zero tolerance policy, it all went out the window in a brief instant," says Hirschfeld, who, at the request of the company, drafted a confidential settlement stating that the case was an exception and that a future infraction would result in termination. However, by that time, others workers in the plant almost certainly knew about the situation.
That’s not an uncommon scenario. "For an overwhelming majority of companies, zero tolerance winds up being a policy that isn’t enforced," notes Madero. "An organization has to be very clear upfront about how it plans to treat various incidents and infractions. It has to decide what warrants termination and what warrants counseling and a lesser punishment." He also recommends establishing a detailed checklist for handling difficult employees—particularly those displaying potentially violent tendencies.
Even worse, many companies choose to ignore the problem altogether. Because they’ve never been slapped with a lawsuit or faced a violent incident in the workplace, they’re reluctant to spend the money to develop a policy and back it up with a program. Others find it easier to buy an insurance policy to cover the potential cost of an incident and then forget about the problem.
But that’s a risky strategy. In June 1998, the U.S. Supreme Court ruled that if a supervisor sexually harasses a subordinate, the company can also be named as a defendant in a complaint—even if the company knew nothing about the harassment. At the same time, the court ruled that an employer’s liability can be potentially reduced if it has training programs and procedures in place for employees to complain or if an employee fails to use the reporting system. Although a zero tolerance policy by itself doesn’t reduce legal exposure, it sets the tone for an overall approach that can reduce risk.
"It often takes a lawsuit, a sexual harassment complaint or a violent incident for an employer to realize that they’ve made a huge mistake by not having a program in place," says Hirschfeld. "At that point, they’re staring down the barrel of a multimillion loss, bad press and poor employee morale."
Zero tolerance is more than a statement.
Putting all the pieces in place is no simple proposition. Hemphill believes that an effective zero tolerance policy requires the support and buy-in of management, but also a good deal of input from the human resources department. Not only is it important to understand the array of legal issues—including court cases, Supreme Court rulings, and government regulations—it’s essential to think of zero tolerance as only one part of an overall solution.
Madero says that an effective strategy begins with background checks and, when legal, psychological screening. "One of the best ways to make a zero tolerance policy work is to eliminate potential problems so that the policy doesn’t have to be tested," he says. Posting the policy on bulletin boards and the intranet, providing training, counseling and crisis response teams should follow that. It also means clearly thinking about what punishments fit particular infractions, and then sticking to the policy.
That thinking gets a nod of approval from Milton at the U.S. Postal Service. "What people often fail to understand about a zero tolerance policy is that it doesn’t necessarily say that an employee will be fired for any infraction. If it’s done right, it usually says that appropriate discipline will be taken. It’s then up to the organization or individual managers to determine what ought to be done. And it’s usually best to have a third party investigate a claim and manage disputes." She notes that the USPS has had employees challenge the application of the policy, but "it’s the same sort of challenge that occurs anytime any sort of disciplinary measure is invoked."
At Dallas-based CompUSA, zero tolerance policies are an integral part of the corporate culture. "Today, as a reflection of lifestyle and social changes, as well as legal issues, it’s necessary to establish zero tolerance policies," says Mel McCall, senior vice president of human resources. The company has taken a stand on violence, drugs, racial discrimination and sexual harassment, among others. Yet ensuring that 19,000 employees at headquarters and in 160 plus superstores follow specific policies is an enormous challenge.
CompUSA has crafted policies that clearly spell out the company’s position as well as the steps it will take to deal with a problem. It uses policy statements, handbooks and extensive training programs to ensure that store managers and workers are educated about appropriate and inappropriate behavior. What’s more, the firm’s substance abuse policy—which includes drug testing for all new hires and random testing thereafter—is communicated to applicants upfront.
Finally, the company takes all claims or potential infractions seriously, investigates them, and audits and reviews all decisions. It has HR professionals throughout the country assigned to specific stores. Employees are encouraged to discuss issues and problems. "By creating a strong organizational structure, creating clear-cut policies and creating open channels of communication, we’re able to prevent problems and deal with them more effectively when they occur," McCall explains.
By any measure, CompUSA’s results have been impressive. Since 1993, sexual harassment complaints have dropped by 75 percent, while the firm’s workforce has grown from 4,000 to 19,000. In some cases, the company terminates employees immediately for serious violations of policy, but hasn’t experienced any legal challenges or a backlash. "The company carefully reviews every situation. A zero tolerance policy isn’t a substitute for thoroughly investigating and documenting a problem," says McCall.
And that’s the point of a zero tolerance policy. In an era when tough talk and catchy rhetoric too often eclipse any real action, some organizations are beginning to understand that an effective zero tolerance policy is more than a battle cry engineered to satisfy customers, shareholders and the media. It’s just plain smart. Saving lives, preventing harassment and avoiding discrimination doesn’t happen in a vacuum. It requires careful thought and action—usually spearheaded by HR.
"Companies that make a serious commitment to a zero tolerance policy and back it up with appropriate actions and procedures usually come out ahead," says Hirschfeld. "Ensuring a safe workplace is perhaps the most important thing an organization can do."
Workforce, May 1999, Vol. 78, No. 5, pp. 28-34.