We all struggle with drafting policies. In this week's Case in Point, we learn that leaving certain words out of your disciplinary policy can be just as legally dangerous as putting the wrong words in. In this case, the employer’s discipline policy essentially allowed employees to engage in one act of sexual harassment without being terminated. In essence, a “one free sexual harassment” for every employee.
The employer was quick to find out it had better give everyone that “freebie” or be sued for discrimination if it deviated from the policy …
Case in Point: Cecil Harden, a security guard at Vanderbilt University, received a copy of the employer’s sexual harassment policy and completed anti-harassment training. Nevertheless, one day he sent his female supervisor an email that aimed to make a love connection, referring to her as “the hottest little thing."
The supervisor perceived the email as being sexually offensive. She reported Harden to HR. Harden claimed the email was in response to his supervisor’s flirting. The employer investigated and terminated Harden.
Harden filed a race discrimination claim under Title VII of the Civil Rights Act, claiming the firing was actually caused by his race. As evidence he pointed to the company’s “disciplinary matrix guidelines.” It said any first offenses of sexual harassment—other than flagrant violations, such as physical threats, quid pro quo harassment, and severe verbal remarks—were punishable by final warning or suspension, not termination.
The court sided with Harden and sent the case to trial, saying the employer acted in contrary to its written policy that established limits on discipline for most first offenses. The judge wrote, “Given the undisputed evidence that [Harden] sent [his supervisor] only the one sexually offensive email, it is an open question as to whether his termination was in accordance with company policy.” (Harden v. AlliedBarton Sec. Serv., M.D. Tenn., 6/7/13)
3 Lessons Learned … Without Going To Court
- Give yourself elbowroom. A disciplinary policy or corrective action policy should state that it reserves the right to discipline an employee at any level and in any order including, but not limited to: oral warnings, written warnings, suspensions with and without pay, and termination. This language gives employers the necessary elbowroom to engage in disciplinary action without being tied to any disciplinary matrix or progressive disciplinary process (unless it is bargained for in a collective bargaining agreement).
- Read policies you inherited. HR and often inherit policies they did not develop or ratify. It’s risky not to know them like you wrote them. As in this case, termination was counter to what the policy stated would happen and a quick reading of the policy would have guided the company as to how it could and could not discipline Harden.
- Use written policies to support disciplinary action. When disciplining an employee, include the disciplinary policy in the file to show company compliance with it. That simple act certainly makes a judge’s job easier to rule in your favor. It will also be a good “last step” control to ensure you are following it before taking such a critical employment action. Had the employer done so in this case, there wouldn’t have been a case.
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