August 24, 2023

Policy Enforcement: Consistency is Key

To lower risk relating to allegations of harassment, discrimination or retaliation it is important that employers consistently enforce internal policies and procedures. Not just on an individual basis, but across the organization at all levels. This includes enforcing the types of behavior that impact the overall workplace culture (e.g., rude or unprofessional conduct).

A perfect example of how inconsistency can increase risk can be learned from the case Constellium Rolled Products Ravenswood, LLC v. NLRB. This U.S. Court of Appeals for the District of Columbia case illustrates how a workplace culture left to its own devices can undermine efforts to comply with anti-harassment laws/policies and run afoul of broader employee protections under the National Labor Relations Act.

In Constellium, the employer introduced an unpopular overtime sign-up procedure. One employee, protesting the change, wrote the words “whore board” at the top of the sign-in sheet. Taking steps to avoid claims of unlawful harassment, Constellium suspended, then terminated, the employee. The employee thereafter filed an unfair labor practice claim with the National Labor Relations Board (NLRB) claiming interference with the right to engage in concerted activity relating to the terms and conditions of employment.

In investigating the claim, the NLRB found that Constellium had a long history of not enforcing anti-harassment/discrimination laws or its own prevention policies; evidenced by the company’s tolerance of the use of the words “whore board” and other such general profanity by supervisors and employees which permeated the workplace. In other words, “tolerance” through a lack of enforcement gave support to the interference claim by casting suspicion on the employer’s action in terminating the employee (in connection with its internal policies) for this one instance, while essentially ratifying the same behavior company-wide.

Terminations supported by documented violations of internal policies will typically provide an employer more protection against allegations of unlawful conduct than if the termination was unsupported. However, an employer’s overall failure to consistently enforce its internal policies can undermine – and place at risk – a valid termination supported by a violation of company policy. Consider the following:

  • Make decisions according to company rules, policies, and procedures to ensure consistency and avoid potential claims of discrimination.
  • Strive to be professional and maintain a professional working environment. Don’t allow personal feelings or emotions to influence the treatment of employees.
  • Observe the following by basing all decisions and actions as to all employees on:
    • Company policy and procedure.
    • Work performance, including quantity of work, quality of work and conduct at work.
    • Past practices in the same circumstance.
  • Don’t allow degradation of the work environment through lack of enforcement when it comes to overtly rude or unprofessional behaviors.
  • On the other hand, in light of a recent NLRB decision, employers should evaluate whether an employee’s conduct in the course of otherwise protected concerted activity is so severe that it should be found to lose the NLRA’s protections in that setting-specific context.