Most employers include written workplace harassment policies in handbooks and other employment documents. While many such policies state that the employer will comply with its obligations under federal and local law, some go farther. Such was the case at Costco, where an “Employee Agreement” signed by all employees stated that “harassment” has a broader meaning than “as defined by law.” While such “extra-broad” policies may be a well intentioned effort to ensure a harassment-free workplace, they can also impose legal obligations above and beyond state and federal requirements.
In Marini v. Costco Wholesale Corp., D. Conn., No. 3:11-cv-00331 (December 1, 2014), a veteran Costco employee brought a disability discrimination claim, alleging that he was harassed because of his disability. However, the employee failed to file a charge of discrimination within 300 days of any act of harassment, making his claims of discrimination untimely under federal and Connecticut law.
While the court granted Costco summary judgment on the discrimination claims, it allowed a breach of contract claim to go forward. The court looked at the language of the Employee Agreement, which stated that “appropriate corrective action will be taken, regardless of whether the inappropriate conduct rises to the level of any violation of the law.” The court further noted that there was no disclaimer in the agreement stating that it not create legally enforceable protections beyond the anti-discrimination laws. Therefore, the court read the Agreement to prohibit discrimination that might not be actionable under discrimination laws.
So what is the take away for employers? It is that you must be exceedingly careful when crafting workplace harassment and discrimination policies. As Costco found out , sweeping statements like “we prohibit all forms of harassment” may look good, but can create liabilities beyond those imposed by statute. When such language is used by an employer, take steps to ensure than it is included in a broader document –such as an employee handbook — that includes a disclaimer of contractual intent.