Part 3: Fire Department Responsibility
This is the third and final part of a three-part article series as a primer on legal issues for fire service leadership. Today’s fire service is an eclectic workplace consisting of many different races, genders, religious beliefs, and cultures, yet remains a predominately white and male dominated occupation. Fire service leadership must remember and actively pursue a diverse workplace, creating a diversity-safe workplace for all of your firefighters, and not just the select few.
The intent of Part 3 article is to remind fire service leadership that harassment and discrimination coupled with the lack of inclusion is one of the most litigated issues in fire and EMS services—with the most costly payout.
I must say this again and shout it from the highest rooftops—harassment and discrimination coupled with the lack of inclusion is one of the most litigated issues in fire and EMS services with the most costly payout.
Policy
My cohort attorneys and I stress the need for a comprehensive set of policies that dictate conduct in the workplace, provide guidelines for firefighters and officers to measure behavior, and to provide a mechanism for discipline or corrective behavior if there is a violation of policy. Of the many policies, departments must have an anti-harassment policy to clearly establish the fire department’s commitment to provide a work environment free from unlawful harassment and hostile behavior, and provide guidance to any employee who believes he/she has been a victim of such behavior based on race, color, religion, gender, national origin, age, sexual identity, or disability, or any other status protected by applicable federal, state, or local law.
The policy must make it specifically clear that the conduct must be unwelcome to the target of the harassment. “Unwelcome” means that the employee did not solicit or incite the conduct and regarded it as undesirable and the harasser can be the victim’s co-worker or officer, an agent of the employer, an officer in another division, or a non-employee.
The policy must also contain the provisions that include the following:
- Firefighters and employees are expected to maintain a productive environment that is free from harassing or disruptive activity.
- No form of harassment will be tolerated included harassment for the following reasons: race, color, national origin, religion, sex, sexual orientation, sexual identity, disability, or age.
- Any firefighter or employee who believes that he/she is victim of unwelcome harassment has the responsibility to report or file a complaint about the situation as soon as possible.
- The report or complaint should be made to the firefighters or employee’s officer, human resources (HR), or outside confidential source set up by administration.
- If the complaint involves the supervisor or manager, there must be a process to complain at the next level.
Department Responsibility
In addition to having a robust policy preventing this behavior, the employer must a confidential reporting mechanism in place, published and available and a point of contact to file a complaint which in many organizations is the HR department/division.
As I have said in previous articles, many fire departments do not perform the best internal investigations and should consider confidential outside resources as an alternative that must be adequate to investigate a complaint.
Again, to the best of our ability, preserve the confidentiality of the complaint, complainant and investigation.
All complaints must be investigated promptly—in an impartial and confidential a manner as possible and as close to the infraction as possible. Your policy must reiterate that employees are required to cooperate in any investigation. If there is a finding of a breach of this policy, any employee, supervisor, or manager who is found to have violated the harassment policy shall be subjected to appropriate disciplinary action which may include termination.
The fire department must prohibit any form of harassment or retaliation for bringing bona fide complaints—or providing information during an investigation.
Retaliation Prevention
Retaliation against the filer of a complaint is illegal and should be in your Policy preventing such actions and is a chargeable offense against the department when filing an EEOC or States Human Rights complaint. Examples of retaliation are: relocating the person to a less desirable station, altering work hours and job description, unnecessary psychological or fit for duty evaluations, hostile conduct from an officer, and poor job evaluations. [i]
Reporting Policy Violations
The most difficult part for the firefighter who is the target of harassment, discrimination, or other policy violations is the reporting of the behavior to HR, the next highest rank in your chain of command, or jumping over those chains to the next highest person in your organization.
The individual in your organization you are reporting to must keep the information confidential but it cannot be held as a secret. There is a duty by the employee obtaining the information to actually do something with it and provide a pathway to the harassed or targeted employee to obtain relief from this behavior.
Keeping secrets during the reporting and investigation process.
Here are a few tips about reporting—keeping secrets:
- “I appreciate you speaking with me…….
- “However, as a company officer I am required to disclose…….
- “I am going to discuss this with ______ and someone in upper management will follow up with you…..
- “If you have any other issues please let me know immediately….
- “Thank you for letting me know about this.”
- “Before you tell me anything else, I want to tell you that…
- “I may have a responsibility as a Company Officer to share your report with ——-
- “It will depend on what you tell me.
- “The department may have an obligation to investigate…
- “So please understand that I cannot promise you I will not make any disclosure.
The effects of unresolved complaints have a cascading effect on the targeted employee and the remainder of the organization. Remember, there are NO SECRETS IN THE FIRE SERVICE, and everybody knows that something is going on but may not be aware of the exact details.
The targeted employee and others in the organization may engage in the following response patterns:
- Absenteeism
- Poor moraleWork not getting doneProblems with personal lifeAnxiety or depressionIncreased work conflictQuitting
- Litigation
Possible penalties for noncompliance and litigation is filed.
- Lost wages and benefits through date of verdict
- Reinstatement or front pay
- $$ for compensatory (emotional distress) damages
- $$ for punitive (deterrent & damages)
- Attorneys’ fees and costs
- Plus
- Lost time
- Poor morale
- Bad publicity
- Difficulty recruiting
Employer Liability
- If there is quid pro quo (this for that) harassment by management, the employer is probably strictly liable.
- Under hostile environment analysis—if there is a policy against sexual harassment and there was a reasonable avenue of complaint utilized correctly by both the victim and employer, then there will not be liability unless employer had actual knowledge and did not correct the behavior.
- The employer would be liable if they knew or there was no reasonable avenue of complaint.
- Respondent superior or vicarious liability, where the employer is responsible for supervisor or employee actions
- The standard for co-worker harassment
- Did the employer know or should the employer have known?
- Employer preventative action
- Have a harassment policy in place
- Have a code of conduct and code of ethics in place
- Educate from top to bottom
- Monitor behavior
- Have an accessible and confidential complaint procedure
- Quick and impartial investigative process
The bottom line is to establish a prima facie (at first look) case for workplace harassment, the employee must identify the offensive contact and then prove that it is unwelcome; that it occurred because of sex, gender, or becuase they are a member of a protected class; that it affected the terms or conditions of employment; annd that and can be imputed to the employer.
Remember:
- Laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
- Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.
- To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
- It must be severe and frequent
- Offensive conduct may include, but is not limited to: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
- Harassment can occur in a variety of circumstances, including, but not limited to, the following:
- The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
- The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
CASES
As a small reminder, there are thousands of these cases on the books and they are primarily against all fire departments, large or small. This is a small sample of the tip of the iceberg of harassment and discrimination claims.
- The City of Petaluma has agreed to settle a sexual harassment suit brought by a female firefighter for $1.25 million.
- A Tampa (FL) firefighter filed a discrimination and retaliation lawsuit and terminated the following day. Sued, was rehired, and won $245,000.00.
- Two Michicang firefighters file sexual harassment lawsuit against township and fire chief. Firefighter Polidan and Stephens claim that firefighters made sexual comments to Firefighter Polidan and retaliated against Firefighter Stephens when he attempted to support her.
- A San Bruno firefighter is suing the city and several members of its fire department on grounds he was sexually harassed and retaliated against when he complained. The lawsuit says the firefighter, identified as 17-year veteran, was subjected to numerous comments and jokes suggesting he was gay.
- A former Rhode Island firefighter who claimed that colleagues discriminated against her because of her sexual orientation and gender was awarded more than $800,000 in federal court.
- A federal jury has awarded $3.35 million to a female ex-firefighter in Ohio who says she was the longtime victim of sexual harassment.
- The firefighter of the Circleville Fire Department alleged she was subjected to equipment tampering, clothing destruction, and gender-related slurs.She also said she was required to meet tougher training and work standards than male counterparts and denied promotions because she’s a woman. The harassment occurred regularly over a 14 year period of time
- City of Denver prevails in a discrimination lawsuit. A terminated firefighter claims discrimination for her termination soon after completing recruit academy. [ii]
- City of Denver prevails in a discrimination lawsuit. A terminated firefighter claims discrimination for her termination soon after completing recruit academy. [ii]
- A battalion chief with the East Haven Fire Department has filed suit claiming she was passed over for promotion to assistant chief on account of her gender. The firefighter filed suit in US District Court for the District of Connecticut naming the Town of East Haven as the defendant. [iii]
- A female firefighter in Jefferson County (WA) who was secretly recorded by a voyeuristic colleague has filed suit against the fire department and the member. The lawsuit filed in U.S. District Court for the Western District of Washington accuses former firefighter, East Jefferson Fire Rescue and Jefferson County with violating the victim’s civil rights, wiretap violations, invasion of privacy, intentional infliction of emotional distress, and trespass. [iv]
The Burden of Proof is on the plaintiff. “To prevail on a hostile-work-environment claim under Title VII, a plaintiff first must show that “the hostile conduct occurred because of a protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 20 1 5).[50]. The plaintiff must also show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015). “This test sets a high bar as the plaintiff must show not only that he or she subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.” Sealy v. State Univ. of New York at Stony Brook, 834 Fed.Appx. 611, 615 (2d Cir. 2020).
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Managing and running a fire department, regardless if 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, with well trained staff members will go far in eliminating or mitigating many of these “employee fires” and unless adequately addressed, will never “go out”.
In 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 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.
Endnotes
[i] https://www.eeoc.gov/employers/small-business/8-what-retaliation-and-how-can-i-prevent-it
[ii] Allen v. City & Cnty. of Denver, United States District Court for the District of Colorado – Civil Action No. 20-cv-02952-MEH
[iii] Parlato v Town of East Haven and East Haven Fire Department. CIVIL ACTION NO. 3:22-cv-1094 (US District Court Connecticut)
[iv] Plaintiff v. Jefferson County, East Jefferson Fire Rescue; Patrick Nicholson Jr.; and Does 1-10, In the United States District Court Western District of Washington – Complaint for Damages (Jury Trial Demanded)
