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Use Caution With New Zero Tolerance Policies

May 27, 1999
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Related Topics: Discrimination and EEOC Compliance, Policies and Procedures, Featured Article
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Issue:
An employee was cited for violating an employer's newly imposed "Zero Tolerance" policy regarding physical and verbal confrontations in the workplace. The employee, a security guard at a nuclear weapons plant, verbally confronted a coworker in the facility's exercise room because he did not like the other employee's choice of music. The employee used racial comments, such as "you probably like that chicken music," and "don't listen to this guy, he's a fried-chicken eater." Using such comments and provoking expletives constituted violations of the employer's zero tolerance policy, as well as its policies concerning equal employment opportunity and harassment. After investigating, the employer discharged the employee. The discharge was eventually submitted to arbitration. Was there "just cause" for the discharge?

Answer:
Yes. The policy, negotiated collectively with a union, gave the employer wide latitude in deciding what conduct could be called "aggravated" and whether it could subject the employee to discharge. Consequently, the employer was justified in its action.

Give employees ample notice of new policies.
Employers confronted with such a situation would be well advised to widely disseminate among employees any policies dealing with verbal or physical confrontations in the workplace. Employees who claim that they were unaware of any new company rules could have a valid ground warranting a reduction in discipline. In this case, although the zero tolerance policy was new, it had been widely disseminated among the employees.

Administer policies consistently; reserve the right to determine "aggravated" circumstances.
Employers must be cautious in their application of a new, possibly more stringent policy. Disparate treatment can be a ground for reducing or completely overturning an employer’s action. Here, the employee argued that his discharge was improper since other employees had previously engaged in verbal altercations but were not discharged. However, the arbitrator noted that the employer's policies allowed the employer to decide whether certain misconduct was "aggravated," and whether the misconduct subjected an employee to discharge, even if it was an employee's first offense. There was no evidence that the policy had been disparately applied to the employee. Thus, the employer acted appropriately under the circumstances.

Cite: Mason Hanger Corporation and Pantex Guards Union, Local No 38, International Guards Union of America. 99-1 ARB 5364. Barry J. Baroni.

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