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Zero tolerance for zero tolerance policies

Rarely has a phrase been so well-intentioned yet so fraught with pitfalls as “zero tolerance”. Policy makers and bureaucrats alike will drag out the “zero tolerance” phrase to communicate that “this time we’re serious” as a response to whichever issue is gaining media attention at the moment. I believe that “zero tolerance” is the easy way out for lazy thinkers, for those who can only operate within the black and white, and are incapable of or unwilling to consider facts and context in order to initiate a fair response for which they should be accountable.

We have all read media accounts of school authorities who have been bound by such policy to punish the bully and victim equally, when a victim of bullying finally defends himself or herself from yet another attack. Zero tolerance leaves no room for the consideration of history, context, likelihood to re-offend, or the school’s own role in the perpetuation of such bullying, with both bully and victim treated equally under “zero tolerance”, while those of us observing from the outside, are likely cheering for the poor soul who finally stood up for himself or herself.

“Zero tolerance” policies are especially dangerous in the employment context. While it is prudent and necessary for employers to deal with such issues as workplace violence, harassment, drug and alcohol use, etc. seriously, employers are also under the legal obligation to assess each situation to ensure that employees are accommodated where necessary for characteristics protected under human rights law, or for general fairness.

In my articling days I worked on a labour arbitration case where an employee was grieving his termination for verbally threatening another employee. On the basis of “zero tolerance” his termination may have been justified, however, on presentation of the evidence it was apparent that the employer not only ignored offensive racist graffiti in the workplace but tolerated so much verbal harassment and abuse between employees (much of it against this employee, who had some disabilities), that the arbitrator determined that the employer had, in effect, created a “poisoned workplace” in which a verbal response, such as that from the grievor, was inevitable and understandable.

Employers should take serious issues seriously, but should be confident enough in their ability to manage employees in the context in which they live and work. Sometimes clichés tell the truth – in this case, justice must not just be done but must be seen to be done. And there is often no justice in “zero tolerance.”

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more

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