Employer's "Super Policy" Against Harassment Requires Employer to Protect Employee Beyond that Which is Required by Law

A Costco employee suffered from Tourette's syndrome and made complaints to management about the way his supervisors and others were treating him. He later filed charges with the Connecticut Human Rights Organization as well as suit in federal district court, claiming that he was subjected to a hostile work environment and retaliation in violation of the Americans with Disabilities Act and corresponding state statutes. He also claimed breach of contract and promissory estoppel. 

Prior to filing those charges, the employee had started secretly taping recording interactions with co-workers and customers. When his employer found out, it terminated him for violating its express policy which identified recording "a conversation without permission from all parties" as a terminable offense.

The employer filed a motion for summary judgment and the court granted and denied, in part.

On the breach of contract claim, the court found that there was a written employment contract between the parties, but that there was a genuine issue of fact as to whether the employer violated the anti-harassment provisions of that agreement. The agreement contained statements like "the Agreement is our pledge that you can feel secure in your job and that you will be treated fairly," which the court found could create contractual obligations on the part of the employer.

A review of the agreement's provisions regarding harassment revealed that these portions could be "quite reasonably read to confer protections for employees from harassment beyond what protections may exist by law." The court looked at how Costco defined harassment

"Harassment can be difficult to define. Misconceptions abound. For this reason, we require you to use our harassment reporting policy without worrying about whether the conduct involved would be considered harassment in a legal sense. If you consider the conduct to be harassment, report it. This policy is intended to assist Costco in addressing not only illegal harassment, but also any conduct that is offensive or otherwise inappropriate in our work environment."

Most importantly, however, was the fact that the agreement stated in more than one place that Costco will take appropriate corrective action against an employee who has violated the anti-harassment policy, even if the inappropriate conduct does not violate any law.

Costco argued that the Americans with Disabilities Act (ADA) preempted any contractual provisions that parallel its protections, however, the Court rejected this argument, finding that the provisions of the agreement were not merely parallel to the protections of the ADA, but instead exceeded those protections.

Thus, the Court concluded that the agreement's anti-harassment provisions were more broad than the statutory protections offered by the ADA, and that they were enforceable. This led the Court to find that there was a genuine issue of fact as to whether Costco breached its contractual obligations to Marini to protect him from harassment by reason of his disability.

The employer in this situation created a very employee-friendly policy regarding inappropriate workplace conduct, and should be applauded for having a policy which extended protections beyond that which was required by law. That being said, the question of fact which is what allowed the litigation to proceed beyond summary judgment is whether the employer properly enforced its policy. In other words, Costco promised its employees greater protections than the law affords, but did Costco fail to adhere to its own policy by failing to protect Marini from harassment based on his disability?

This case, Marini v. Costco Wholesale Corp., No. 11-00331 (Dist. Conn. December 1, 2014), reminds employers of the importance of not only having good policies, but actually enforcing them, too.