Ordinarily, employers think of anti-harassment policies as a means of defending themselves against harassment claims rather than a source of liability. However, a recent decision from a U.S. District Court in Connecticut serves as a reminder that written policies can create binding obligations for employers under certain circumstances.

In Marini v. Costco Wholesale Corporation, the plaintiff was a 10-year employee of Costco with Tourette’s syndrome. Marini worked for seven years in the bakery before requesting to be transferred based on the harassment he claimed he experienced from co-workers. He was transferred to the gas station, where he alleged that the harassment continued. Marini was eventually fired for secretly taping his interactions with co-workers and customers in violation of Costco policy.

Marini sued, alleging that he was subjected to a hostile work environment due to his disability, in violation of the Americans With Disabilities Act and the Connecticut Fair Employment Practices Act, and in breach of the anti-harassment provisions included in a written employment agreement between Costco and the employee. Costco moved for summary judgment. The court granted the company’s motion in part, finding that Marini’s claims under the ADA and Connecticut Fair Employment Practices Act were barred because he failed to file a timely charge of discrimination. However, the court denied Costco’s motion as to Marini’s breach of contract claim.

The anti-harassment provisions of the employment agreement stated, in part, that “[t]his 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.” Additionally, the policy provided that, “[a]ny one who is found to have violated our anti-harassment policy is subject to corrective action up to and including immediate termination of employment, regardless of whether the violation amounts to a violation of law.”

Costco argued that this language was not intended to confer any rights beyond those afforded by the ADA and state anti-discrimination law, and that the ADA preempted those provisions of the contract. The court rejected those arguments, noting that the employment agreement with Marini was a binding contract, and that the provisions of the agreement “do not merely parallel but exceed the protections of the ADA, and so there is no basis to presume them to be preempted.” The court further noted that “[t]he Employment Agreement does not contain any disclaimer language to the effect that its ‘super’ anti-harassment provisions do not create legally enforceable protections beyond the protections of background law.”

Lessons for Employers

Employers often adopt broad anti-harassment, anti-discrimination, and anti-retaliation policies whose prohibitions extend beyond conduct that would be regarded as illegal under applicable law. This is sensible: responsible employers deal with issues like harassment and discrimination before they rise to a level that may be legally actionable. However, when adopting such policies, employers either need to include language making it clear that the policies do not confer enforceable legal rights beyond those existing under applicable law, or be prepared to pay the piper if an employee can establish breach of the agreement.