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In the Age of #MeToo, How Far Is Too Far? Some Say That A Zero-Tolerance Policy May Do More Damage Than Good

The rise of sexual harassment allegations stemming from the #MeToo movement has left many employers reeling as they try to implement policies and procedures to protect themselves from potential liability. Some have elected to impose a zero-tolerance policy for all sexually inappropriate behaviors in the workplace. While this sounds good on paper, in reality, it can have some unintended consequences.

A recent situation involving three New York Mets employees reveals just how complicated some harassment allegations can be.

The problem arose when a female employee recorded two male employees telling a sexually inappropriate joke. She brought it to the attention of the human resources department and both men were fired. This sounds pretty cut-and-dry... until you look deeper into the facts of the case.

Complex Harassment Charges

In this recent case, the men, who were both long-term employees, were speaking privately to one-another in the men's room. The female co-worker, who the men had never met, overheard their conversation through the wall and secretly recorded it. It should also be noted that while the joke may have been inappropriate, it did not reference any particular employee of the company.

While there is probably much more to this story than what has been released to the public, it brings to light a number of potential issues you may be faced when dealing with harassment allegations. Let's take a closer look.

Legality of Secret Recordings

Twelve states, including Florida, have wire-tapping laws that prohibit recording private conversations without consent. A conversation between two people in a public place, like a crowded restaurant or bar, may not be considered private. However, one that occurs in a private room with no one else around most likely falls under these regulations.

This creates an issue for employers faced with a similar situation. If an employee brings you a recording, seek legal counsel before taking any action. This will help you avoid liability for taking action based on illegally obtained information. You may also find that you need to address the behavior of the employee who made the recording.

Severity of the Offense

A zero-tolerance policy requires the same punishment for all offenses, regardless of the severity. This may backfire if you're faced with having to fire a valued employee based on the over-sensitivity of a co-worker.

While all complaints of misconduct warrant a thorough investigation, as an employer, you're better off giving yourself some leeway in dealing with problems on a case-by-case basis. If you find that an employee's actions were inappropriate but don't warrant termination, you can implement other options like sensitivity training, suspension, or demotion. Of course, you still retain the right to terminate employees as warranted, but this approach gives you much more flexibility.

Employer Best Practices

Establishing clear policies and procedures can help you avoid harassment-related problems. Your policies should clearly define harassment and state that you will not tolerate inappropriate behavior. Explain how and to whom employees can file complaints and describe the disciplinary measures that may result from misconduct.

Thoroughly investigate every complaint, no matter how small it may seem. If you choose a more flexible approach in dealing with harassment complaints, you must take care to avoid any allegations of favoritism. When corrective action is warranted, ensure all similar cases are addressed in the same manner. As always, when in doubt, seek the advice of a qualified legal professional before taking action.

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Danz Law, PLLC
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Toll Free: 866-640-1080
Phone: 954-406-7535
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