Home » News » The Employer’s Inconsistent Application of Company Policies

Dan Schwartz: So, in your experience, what are the most common inconsistencies that you end up seeing about how companies enforce those policies and how those inconsistencies might strengthen actually an employee’s case.

Nina Pirrotti: You know it is really true – that a case that is otherwise a slam dunk for the employer can really be undone by inconsistent application of policies.

And I’ll give you a couple of examples of anecdotes, just to put some meat on the bones and get an understanding of what we’re talking about. I once had a client who worked for a, very well-known franchise that sells mostly donuts and she complained of sexual harassment and actually some of it was seen on video of her coworkers sexually harassing her.

Well, she was also seen on video taking donuts home with her and other products home with her at the end of the workday. So according to this particular franchise, that’s a very serious offense. It’s a policy violation that can include discipline up to and including termination. Of course, they terminated her.

And the best defense I had was the supervisor actually was taking home product. The coworkers were all taking home product. She takes home product. What is the difference in her scenario? Well, she’s the only one who’s complained about sexual harassment.

Another wonderful example is a client who was signing customer’s names to these certain types of sheets that go along with his business when he’s selling merchandise and you’re not supposed to do that technically, you’re supposed to have the customer sign the sheets. Okay, that’s reasonable, except that our client had, at that point, developed cancer and was undergoing cancer treatment. So, the best comparator for him was how he was treated before he got cancer. Before he got cancer, he regularly signed these sheets. Everyone knew about it. Nobody cared. After he got cancer, all of a sudden they were shocked to see that he was signing these sheets, and they terminated him. And so, what we really are looking for when we’re analyzing a case is if there is a clear policy violation.

In both the examples I gave to you, there were. Are they consistently applied across the board regardless of whether you are in a protected class or engaged in protected activity or not?  And if so, great, and if not, you make that decision to disproportionately discipline our client at your peril.

Dan Schwartz: Yeah, I guess this probably isn’t a good time to bring up the fact that when I worked at a pizza place, I would routinely take home pizzas at the end of my shift. To be clear, it was with the blessing of the supervisor. And look I was a teenager. Free pizza was about as good as it got on things.

That’s really interesting though on the policies because I think you and I have probably seen written policies that are great in practice, but probably fail in their implementation.

Nina Pirrotti: This is the thing, and one of my most common responses when someone is filing a position statement or an answer in the CHRO, the Connecticut Commission of Human Rights and Opportunities, or the EEOC, is look at these robust, wonderful policies we have likely written by someone as brilliant as yourself Dan – look at these fabulous policies we have in place. My response is the policies are only as good as the paper they’re written on, and if you are not following your wonderful policies, you really are doing your company a tremendous disservice, and you are doing your employees a tremendous disservice.

I will tell you this, that all you need to do is one time, follow a policy to the letter when it comes to a rainmaker or a really important person in your company to send a message loud and clear – this is not tolerated, and if you do this kind of conduct, this is what happens to you. We don’t care who you are, whether you’re the person at the top of the food chain or at the bottom.

I will just tell you, Dan, I once had a general counsel – she was so smart and she had a rainmaker, really top of the chain of his Fortune 500 company, engaged in sexual harassment with a low level subordinate, and she did an investigation. She did a credibility assessment. It was just he and she walking on the beach at a conference and she determined that our client was telling the truth and she terminated the rainmaker. I mean, what a message. Do you think that others who weren’t as prominent or as valuable to the company are not going to look at that and say, the, before the grace of God go, I, if I was thinking of harassing this person or stepping out of line, I think I’ll think twice.

And that’s what we really want here. We want for, especially for serious conduct like sexual harassment, sexual assault, but also discrimination, harassment on other protected classes. What we want is a zero-tolerance policy no matter who you are, because all it takes is one time. It’s hard for the company that getting rid of somebody really good and valuable, but it really can have beneficial consequences in the long term.

Dan Schwartz: Yeah, I would say, firing the high performer who commits a policy violation is a really tough conversation to have. But I will say, I think more and more, particularly over the last, five or 10 years, I think employers have realized that they have to do it, not really just for that situation but for what you’ve described, which is sending a message to your entire workforce that this won’t be tolerated because inevitably other employees have heard about it through whispers, through conversations. And if you don’t take action, the rest of your employees are going to know, Hey, this is tolerated. So I think that’s a great point to bring up.

Nina Pirrotti: And Dan, I’ll also say this, can you imagine how difficult it was for me to negotiate on behalf of this particular client when they did everything right?  The employer they found out about it, they investigated it promptly, and I think this is going to segue nicely into our next conversation, but they investigated it promptly.

They did everything they needed to do, and in the end, they terminated the wrongdoer. What do I do as the employment lawyer? It really did limit my options in negotiating for her.

About the Author

Client Experiences

Advocating for Employees since 1977