Discrimination, Diversity, and Harassment: A Legal Primer for Fire Department Leadership

Part 1: Harassment

This three-part article will discuss diversity, discrimination, and harassment, and what the fire department’s responsibilities are to their firefighters and the community

Today’s fire service is an eclectic workplace consisting of many different races, genders, religious beliefs, and cultures, yet it remains a predominately white and male-dominated occupation. National Fire Protection Association (NFPA) statistics note in their annual report that their demographic studies indicate that the fire department is predominately male, 6.4% women (career) and 7% (all including volunteer). In terms of race, 82% are Caucasian, 9.5% Hispanic or Latino, 7.7% Black or African American, and fewer than one percent (<1%) are Asian. Our fire department support staff, consisting of non-uniformed personnel, are predominantly female with no specificity of age, race, religion, or sexual orientation or other protected factors. (1)

Harassment and discrimination coupled with the lack of inclusion remain the most litigated issues in fire and EMS services —with the most costly payout.

So answer these three questions: How do you define discrimination? How do you define harassment? Are they defined separately or together? And finally, how do you define diversity and inclusion?

These are questions must be answered to establish the root cause of potential harassment, discrimination claims, and lack of diversity in your fire department, large or small.

Protected Classes

When discussing any of these topics, it is important to understand the term “Protected Class” of employees.

A protected class is a group of people sharing a common trait who are legally protected from being discriminated against on the basis of that trait. In June of 2020, the United States Supreme Court ruled that sexual orientation and gender identity are protected as forms of sex discrimination. (2)

Protected classes consist of the following: Race, religious belief, national origin, age (40 years and up, the Age Discrimination in Employment Act or ADEA), gender identity, pregnancy (PDA), citizenship, familial (family) status, disability status (ADA), veteran status, uniformed services employment and reemployment rights Act (USERRA), genetic information (Genetic Information Nondiscrimination Act, GINA). (3)

Constitution and Statutes

There are several constitutional protections that much of the law all organizations must follow, either public or private, protecting the rights of your employees such as: Title VII of the Civil Rights Act of 1964, which indicates (42 U.S.C. subsection 2000(e)) that sexual harassment by employers against employees is actionable and a recognized cause of action.

The Civil Rights Act of 1991 (42 U.S.C. § 1981a) included several amendments and provide for damages in employment discrimination cases, and to clarify provisions of the 1964 act relating to “disparate impact” actions. All employers must be aware of these protections and create a set of policies to address the protections of their employees under the Constitution.

All states have statutes or codified laws also protecting their employees. In my state of Washington, there are a number or employee protections such as RCW 9A.36.080 (Malicious Harassment – Definition and Criminal Penalty), RCW 18.130.180 (Unprofessional Conduct), RCW 28A.300.285 (defines bullying and harassment), RCW 28A.640 (Sexual Equality) and last but not least Chapter 49.60 RCW (Human Rights Commission – Anti-discrimination Statutes). These along with a robust state agency helps to protect employee rights.

One of the biggest sources of litigation affecting employers and employees is unrestrained and uncorrected harassment of the employee either by supervisors or officers or between the firefighters and staff themselves.

Harassment Defined

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA). Harassment is described as severe or pervasive verbal or physical conduct that denigrates, shows hostility or aversion toward an individual because of his/her race, color, religion, gender, national origin, age, disability, or reprisal for participating in the Equal Employment Opportunity (EEO) process. [4]

The potential for harassment, including sexual harassment, exists in every workplace and there are increasing claims as employees are becoming increasingly vocal about harassment in the workplace. Harassment is a costly proposition for employers and can result in low morale, absenteeism, reduced productivity, employee turnover, and damages and litigation costs.

The harasser as well as the target can be a man or woman. The claimant does not have to be the person at whom the offensive conduct is directed but can be anyone directly affected by conduct by being in the area when the conduct occurs. I call this collateral damaging a witness or fellow employee who observes the conduct between two other employees and is adversely affected by that conduct.

Harassment becomes unlawful where enduring the offensive conduct becomes a condition of continued employment; the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive or comments; or the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating or offensive working environment.

The key issues here are frequency and severity and the “reasonable person” or “reasonable woman” standard governs.

Some examples of harassment are: pressure for dates originating from leadership or fellow employees; making offensive remarks about your looks, clothing, or your body parts; touching in a way that may make an individual feel uncomfortable; telling sexual jokes; hanging sexual posters, or having such books or magazines in public places and crew quarters; using racially derogatory words, phrases, epithets, demonstrations of a racial or ethnic nature such as the use of gestures, pictures or drawing which would offend a particular racial or ethnic group.

Included are comments about an individual’s skin color or other racial/ethnic characteristics or negative comments about an employee’s religious beliefs, negative stereotypes regarding an employee’s birthplace or ancestry, negative comments an employee’s age when referring to employees 40 and over, and, last but not least, derogatory or intimidating references to an employee’s mental or physical impairment.

Harassment in a Nutshell

Verbal: derogatory comments, racial or sexual epithets, requests for sexual favors, sexual innuendoes, offensive jokes or stories, repeated propositioning.
Non-Verbal: Staring, derogatory or suggestive gestures, winking, throwing kisses, shunning, and ostracizing.
Visual: offensive pictures, photos, cartoons, posters calendars, magazines, or objects.
Physical: unwelcome touching, hugging, kissing, patting, stroking, standing too close.
Written: unwelcome personal letters, notes, or emails.

Harassment in Many Other Forms

Harassment is also found in bullying, which is physical and psychological harassing behavior perpetrated against an individual by one or more persons. Another form is psychological harassment, which is defined as humiliating or abusive behavior that lowers a person’s self-esteem or causes them torment. This can take the form of verbal comments, actions, or gestures. Included is racial harassment, which is the targeting of an individual because of their race or ethnicity. The harassment may include words, deeds, and actions that are specifically designed to make the target feel degraded due to their race or ethnicity.

Religious harassment includes verbal, psychological or physical harassment used against targets because they choose to practice a specific religion. Religious harassment can also include forced and involuntary conversions failure to accommodate their religion is dress and hair, observances of religious holidays, or denying the right to pray while on duty.

Another form of harassment that takes place off-the-job is called stalking, and is defined as the unauthorized following and surveillance of an individual, to the extent that the person’s privacy is unacceptably intruded upon and the victim fears for his or her safety. Included here is cyberstalking or electronic harassment through the use of electronic tools such as email or instant messaging to harass or abuse a person or persons.

Many states have laws protecting your school-aged children from this form of stalking due to the number of suicides resulting from this electronic form and bullying and harassment. Even in our own fire services, members have committed suicide due to unrelenting bullying both on- and off-duty using electronic communications such as e-mail, Facebook, and the hundreds of electronic sites that are used to harass and bully.

Hazing, which in many departments is a “rite of passage” for probationary employees, has been found to be another form of harassment. It is defined as a persecution, harassment, or torture in a deliberate, calculated, planned, manner. Typically the targeted individual is a subordinate, for example, in a military unit, a fraternity pledge, or a first-year firefighter on probation. Hazing is illegal in many instances.

Non Employees: Many fire departments have outside vendors conducting business in your fire stations. The same standard should apply to all non-employees. The liability standard for non-employees is the same as for employees, except consideration is given to the extent of the agency’s control over the non-employee. For example, an agency may not be able to control the actions of a one-time visitor to its workplace other than to stop the behavior and escort the visitor out of the workplace. In another instance a department would be able to correct harassment by an independent contractor with whom it has a regular relationship.

Harassment Test: Severe and Pervasive

The standard level of offensiveness of the unwelcome act or word
Frequency or pervasiveness of the offensive encounters
Total length of time over which the encounters occurred
Context in which the harassing conduct occurred

Sexual Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome verbal or physical conduct of a sexual nature; when submission to such conduct is made a term of condition of employment; when submission to or rejection of such conduct is used as a basis for employment decisions; and when such conduct unreasonably interferes with job performance or creates an intimidating, hostile, or offense work environment. (5)

In a case entitled Elliason v. Brady, (6) sexual harassment is considered sexual discrimination and a violation of the Civil Rights Act of 1967. This case is considered a landmark sexual harassment case heard in the 9th United States Circuit Court of Appeals in 1990. The employee, Kerry Ellison, was employed as a revenue agent with the Internal Revenue Service (IRS) in San Mateo, California. She alleged another employee had been sexually harassing her, thus creating a hostile work environment and claimed this harassment was in violation of Title VII of the Civil Rights Act of 1964. 42 U.S. Code § 2000e (1982). The case redefined sexual harassment in the workplace by examining the case more from the victim’s perspective rather than stereotyped ideas.

Preventing Sexual Harassment: Employees

The employer can protect employees from other employers or supervisors by avoiding behavior that may be misconstrued as possible sexual harassment. Those behaviors must be included in your sexual harassment policy. It must provide direction to the employees as to what sexual harassment looks like to the target to include the provision to: avoid sexual jokes, comments, and e-mails; respect a person’s indication that your conduct or attention is not welcome; not invade another individual’s personal space nor touch anyone without that individual’s permission.

The employer must clearly inform those engaging inappropriate sexual-orientated behavior that they find it objectionable and the employee who is the target seek assistance promptly if they are the target or observe severe or repeated instances of behavior that they believe qualify as sexual harassment.

The conduct must affect a term, condition, or privilege of employment; it must be unwelcome; it can be based on race, color, religion, national origin, sex, sexual orientation, age or disability; and is severe or pervasive under a reasonable person standard.

The employer must monitor workplace behavior, enforce respect, treat all complaints seriously and confidentially, and not ignore any allegation. The employer must post and disseminate the department’s anti-harassment and other EEO policies; respond to allegations immediately; investigate as appropriate; and your investigators must be sensitive but impartial.

During any investigation, either performed internally or using an outside investigator, you must interview parties and relevant witnesses, ask opened-questions, collect relevant documentation and evidence, and take appropriate corrective action and follow-up with all parties at the end of the investigation as is closes.

The employer must ensure no retaliation and it is imperative that the employer document their actions.

Standards: Reasonable Person

The standards used in any of these situations, and especially under court purview, is whether a “reasonable person,” either a “reasonable woman” or “reasonable man,” would find the environment to be hostile. The employer and certainly the courts will look at the perspective of the victim—a reasonable person of the same sex (See Ellison v. Brady (9th Circuit)). If the victim does not subjectively find the environment to be hostile, then there is no violation. (See a California Jury Instruction (7)

A victim of harassment should clearly communicate to the harasser—verbally, in writing, through a third party, or in some other way—that the conduct is unwelcome and STOP means STOP.

At times there is evidence that the victim participated in the conduct that she or he later challenged. This would generally defeat a harassment claim, since participation communicates it was welcomed. However, participation does not always necessarily mean the conduct is welcome. Fear is a powerful motivator and acquiescence or submission to sexual demands does not necessarily mean that the conduct was welcome.

Sexual assault is a crime and should be reported to the police and human resources immediately as the victim or person affected by the conduct should promptly report it or file a complaint if the conduct continues after the perpetrator becomes aware it is unwelcome. Your employees observing any harassing conduct must intervene to stop or prevent the behavior.

CHECKPOINT

What have you seen or heard on the job?
What have you seen or heard that you questioned but were really unsure?
What are “accepted behaviors” in the fire service that make you uncomfortable?

Managing and running a fire department, regardless if it is career or volunteer, requires real people to accomplish the mission of the department. They bring a lot of experience, and sometime baggage, into the department. Your employees (or people) can cause personnel issues for you, your department, and others in the department or community. It can distract your department from its mission, create an unsafe workplace, and create turmoil among your firefighters. I term these ongoing personnel issues “employee fires.” They seem to never get extinguished.

Proper hiring practices, strong leadership along with a good set of policies, and well trained staff members will go far in eliminating or mitigating many of these “employee fires,” which, unless adequately addressed, will never “go out.”

Any discrimination or harassment case, real or perceived, related to your employees needs to be recognized right away, investigated, and resolved.

The burden of proof remains with the accuser, which is a high bar to overcome and in my experience, some departments place all types of barricades in the way of the accuser to prevent resolution of the issues in the best interest of both parties.

Departments cannot sweep these issues “under the rug” hoping they will go away. They do not and will come back to the department in another form with either an EEO complaint or a state complaint to the Human Relations Division protecting the rights of employees in your state.

I urge fire departments to treat all of their employees with respect, eliminate biases, and provide the proper setting to ensure the success of all firefighters and your employees.

Watch for Part 2 of this series dealing with Discrimination and Diversity.

REFERENCES

(1) NFPA 2020

(2) https://www.jdsupra.com/legalnews/supreme-court-declares-sexual-58925/

(3) https://www.hhs.gov/civil-rights/for-individuals/special-topics/needy-families/civil-rights requirements/index.html

(4) https://www.eeoc.gov/harassment

(5) https://www.eeoc.gov/sexual-harassment

(6) Ellison v. Brady 924 F.2d 872 (1991)

(7) https://www.justia.com/trials-litigation/docs/caci/2500/2524/

JOHN K. MURPHY, JD, PA-C, MS, EFO, retired as a deputy chief after a 32-year fire service career. He is a licensed attorney in Washington with a focus on employment practices liability, training safety, employment policy and rules, and internal investigations. He is a subject matter expert on prehospital emergency medical services (EMS) and fire operations, consults with private and public services on risk management, and serves as an expert witness on fire department litigation. He is a frequent local and national speaker on legal issues affecting fire and EMS services.