Zero Tolerance Policies May Expose Employers to Reverse Discrimination Claims

Zero Tolerance Policies expose employers to liability, including reverse discrimination claims, when they are not consistently enforced.On October 28, 2014, the Michigan Court of Appeals (in Hecht v. National Heritage Academies, Inc.) affirmed a $535,120.00 jury verdict in favor of a teacher (Caucasian) that was terminated for making racial comments/jokes (such as expressing a preference for a white table over a brown table and stating that the brown needed to go).

According to the evidence presented at trial, several African American employees were not disciplined for engaging in racial “banter”. The evidence revealed that the following actions did not result in any discipline:
  • African American employees used the “N” word;
  • One African American employee referred to a Dora the Explorer mural as “Laquisha” since her skin was so dark; and
  • Another African American employee asked why a white person would be eating pork chops for dinner.

Since it was undisputed that no African American employee had ever been disciplined for engaging in racial “bantering”, the jury found that reverse discrimination occurred.

The foregoing is a lesson that a Zero Tolerance Policy violation should always result in disciplinary action up to and including discharge. Even if the parties involved are not offended, it is a good practice to at least issue a warning so the employer has a defense to a disparate treatment claim if the policy is enforced in the future.

This article was written by JAMES M. REID, a member of the Legal Affairs Committee of Detroit SHRM, a Resource Partner of Detroit SHRM, and a shareholder of the law firm of Maddin, Hauser, Roth & Heller, P.C. located in Southfield, Michigan. He can be reached at (248) 351-7060 or jreid@maddinhauser.com.