Disciplining Janitors For Harassment In The Workplace

Discrimination or sexual harassment. There are laws against discrimination and harassment in the workplace. Employers are legally obligated to take steps to prevent such conduct by, for instance, publishing appropriate policies or conducting training, and to remedy such conduct if they become aware it is taking place. If management fails to take these steps, the company (and sometimes managers) risk becoming liable themselves. For that reason, imposing discipline for acts of discrimination or harassment is virtually obligatory.

If management becomes aware that a worker is the victim of harassment or discriminatory conduct because of age, race, color, national origin, creed, religion, disability or handicap, sexual preference or orientation, family status or military status, action must be taken immediately. Doing nothing usually just makes the situation worse.

Abusive conduct. The Supreme Court of the United States has noted that everybody is occasionally the victim of rude and boorish conduct at work and that the law is not a guarantee of good manners. There are, however, lines that should not be crossed.

Abusive conduct is generally regarded to mean conduct that is threatening, offensive, intimidating or demeaning. Such conduct is usually not physical; physical offenses fall afoul of the prohibitions against assault. Abusive conduct interferes with the ability of others to carry out their duties undisturbed and disrupts the harmony of the workplace.

While it is good to have rules in place that curb the depredations of bullies and psychopaths, many decent employees have occasional squabbles at work. For that reason, the rules must be applied with judgment and care. The employer must establish that the conduct in question is objectively offensive and is frequent enough or severe enough to warrant discipline.

Violation of work or safety rules. Once an employer has formulated rules for the workplace, has put them in writing and has distributed them to the workforce, they become the “law of the shop.” Employees are supposed to know and comply. Failure to read the rules is no excuse.

Unlike the more serious offenses of theft or fighting, discharge for violating work rules is usually not automatic. The degree of discipline should depend on the severity and frequency of the offense. Inadvertent violation of a minor rule should not be treated the same as flagrant disregard of a major rule.

Employers should remember that rules must be enforced consistently and uniformly. All supervisors should know the rules and enforce them in the same way. Failure to do so could result in claims of arbitrary or discriminatory treatment.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.