Democratic EEOC Commissioner Cautions Against Inflexible Enforcement of Harassment Policies

July 13, 2018

Equal Employment Opportunity Commissioner Chai Feldblum (D) warned that “zero tolerance” of sexual harassment could backfire if enforced in a manner that chills the reporting of objectionable actions.

If all bad behavior results in a termination, “[t]hat will not only be correctly perceived as an unfair system, but it might also chill reporting.  A lot of people don’t want their co-worker to be fired, they just want the conduct to stop,” said Feldblum.

The EEOC does like the term “zero tolerance,” because “it communicates that there will be zero tolerance for any form of unwelcome behavior in the workplace.  The whole point is that you’re nipping bad behavior in the bud.  An employee should understand that it does not mean that every type of conduct results in the same consequence, for example, termination.”

Major takeaway:  Commissioner Feldblum is repeating a point made in a 2016 report by the Commission.  It underscores the challenges companies and their HR departments face in dealing with the many forms and degrees of violations of workplace harassment policies.  For similar reasons, policymakers should be wary of trying to fashion any new laws or regulations that could result in “one-size-fits-all” enforcement.