A Word to the Wise

Few would argue with the proposition that today's employers generally take claims of discrimination and harassment in the workplace far more seriously than was the case a generation ago, or even just a few years ago. The lessons of equal employment opportunity are being learned on a daily basis, and the workplace is the better for it.

Courts have repeatedly acknowledged that Title VII was not intended to serve as an arbiter of good taste. For example, Justice Scalia, on behalf of a unanimous court in Oncale v.Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), rejected the notion that Title VII imposed a 'general civility code for the American workplace.' Yet on occasion employers will severely punish, even terminate, employees accused of inappropriate behavior that is more boorish than illegal. Have employers become too sensitive to the issue, meting out punishment in disproportionate doses in EEO cases? If so, is this an over-reaction by a liability-sensitive employer community or prudent human resources policy, or something else? The recent case of Strycharz v. Verizon, 2002 WL 31856820 (S.D.N.Y. 12/19/02) (Lynch, D.J.), is instructive in this regard.

In Strycharz, plaintiff sent a joke with sexual content from his office e-mail to current and former colleagues at Verizon. One of the recipients of the e-mail complained, and Corporate Security uncovered five other offensive e-mails stored in Strycharz's computer that were either sent from or received at that work station. When confronted, Strycharz admitted that he had distributed the off-color e-mails, acknowledged that this misuse of the e-mail was inexcusable, and apologized. Strycharz was terminated along with a second employee, and he sued, alleging age discrimination and violations of ERISA and RICO.

In his defense, Strycharz recanted his confession, and testified that he was led to believe that by falsely confessing guilt he would be protecting his job. The truth, he testified, was that he only sent the original e-mail that caused the problem and had no knowledge of the other e-mails.  

The court granted Verizon's motion for summary judgment. In doing so, it acknowledged that Strycharz was not unreasonable in believing that Verizon had failed to terminate employees for other kinds of misconduct worse than what he was accused of doing in this case. Indeed, the court remarked, 'Verizon, like many companies, might well be characterized on the basis of this record as being overly concerned about the risk of being sued or embarrassed over accusations of sexual harassment.' Nevertheless, the court pointedly concluded that there was nothing in federal anti-discrimination law that required 'Verizon to agree with Strycharz's assessment of the relative seriousness of various violations of company policy.'

Perhaps some employers are on occasion guilty of being 'overly concerned about the risk of being sued' and over-reach in EEO cases. And perhaps the employment, and even the careers, of some unfortunate offending employees are damaged or ruined as a result. One does not have to endorse the over-reaction, however, to know that, even if present, it may serve a greater purpose, that is, to reinforce the importance of EEO policies in the workplace. What better way to demonstrate that this employer has in place a zero tolerance policy with respect to EEO violations than to react strenuously at the first sign of trouble?

And finally, perhaps Justice Scalia was right in rejecting the notion that Title VII imposed a code of civility in the workplace. We would be na've, however, not to acknowledge that at times it has had that effect.

Few would argue with the proposition that today's employers generally take claims of discrimination and harassment in the workplace far more seriously than was the case a generation ago, or even just a few years ago. The lessons of equal employment opportunity are being learned on a daily basis, and the workplace is the better for it.

Courts have repeatedly acknowledged that Title VII was not intended to serve as an arbiter of good taste. For example, Justice Scalia, on behalf of a unanimous court in Oncale v.Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), rejected the notion that Title VII imposed a 'general civility code for the American workplace.' Yet on occasion employers will severely punish, even terminate, employees accused of inappropriate behavior that is more boorish than illegal. Have employers become too sensitive to the issue, meting out punishment in disproportionate doses in EEO cases? If so, is this an over-reaction by a liability-sensitive employer community or prudent human resources policy, or something else? The recent case of Strycharz v. Verizon, 2002 WL 31856820 (S.D.N.Y. 12/19/02) (Lynch, D.J.), is instructive in this regard.

In Strycharz, plaintiff sent a joke with sexual content from his office e-mail to current and former colleagues at Verizon. One of the recipients of the e-mail complained, and Corporate Security uncovered five other offensive e-mails stored in Strycharz's computer that were either sent from or received at that work station. When confronted, Strycharz admitted that he had distributed the off-color e-mails, acknowledged that this misuse of the e-mail was inexcusable, and apologized. Strycharz was terminated along with a second employee, and he sued, alleging age discrimination and violations of ERISA and RICO.

In his defense, Strycharz recanted his confession, and testified that he was led to believe that by falsely confessing guilt he would be protecting his job. The truth, he testified, was that he only sent the original e-mail that caused the problem and had no knowledge of the other e-mails.  

The court granted Verizon's motion for summary judgment. In doing so, it acknowledged that Strycharz was not unreasonable in believing that Verizon had failed to terminate employees for other kinds of misconduct worse than what he was accused of doing in this case. Indeed, the court remarked, 'Verizon, like many companies, might well be characterized on the basis of this record as being overly concerned about the risk of being sued or embarrassed over accusations of sexual harassment.' Nevertheless, the court pointedly concluded that there was nothing in federal anti-discrimination law that required 'Verizon to agree with Strycharz's assessment of the relative seriousness of various violations of company policy.'

Perhaps some employers are on occasion guilty of being 'overly concerned about the risk of being sued' and over-reach in EEO cases. And perhaps the employment, and even the careers, of some unfortunate offending employees are damaged or ruined as a result. One does not have to endorse the over-reaction, however, to know that, even if present, it may serve a greater purpose, that is, to reinforce the importance of EEO policies in the workplace. What better way to demonstrate that this employer has in place a zero tolerance policy with respect to EEO violations than to react strenuously at the first sign of trouble?

And finally, perhaps Justice Scalia was right in rejecting the notion that Title VII imposed a code of civility in the workplace. We would be na've, however, not to acknowledge that at times it has had that effect.