By John K. Murphy
The fire service is not an exclusive “Men’s-Only” club. It represents the cross section of our culture and, in a perfect world, it would treat everyone equally. There are hundreds of laws generated and passed to protect women, minorities, religious beliefs and freedoms, age, certain disabilities, gender beliefs and lifestyles, and our veterans. Every day, our industry violates those very laws designed to protect those covered under the law. Claims based on violations are costing fire departments millions of dollars every year and ruins the careers and dreams of those chosen to become firefighters.
One of those protected classes are women firefighters; based on the case law experiences, the fire service places women firefighters at a disadvantage when they enter the firehouse generally based on gender and not on the ability to do the job. This observation is based on the innumerable lawsuits brought by women against their fire departments, firefighters, and officers based on the boorish, egregious, discriminatory, and continuous illegal conduct against our women firefighters during the hiring process, the probationary period, promotions and throughout their careers as firefighters.
When will we stop treating women firefighters differently than men firefighters?
I know that most of you will be outraged by these broad, brush characterizations of the fire service as it relates to women firefighters. If you are, you should continue to read this article; you play an important role in stopping this behavior. If you are not outraged, you should continue to read this entire article to see how changing your behavior toward women firefighters may prevent litigation.
Yes, there are men and people of color who suffer discrimination and, yes, they file lawsuits. But, the comparable number (men v. minorities v. women) is heavily weighted toward women firefighters filing a lawsuit based on the following reasons.
The most recent outrageous and egregious behavior by fire officers and firefighters was found in the Los Alamos (NM) County Fire Department (LACFD). According to a federal lawsuit, a woman firefighter grew up dreaming of becoming a firefighter. When she got her wish in 2006, members of the LACFD sexually harassed her verbally and physically. Her breaking point occurred when a captain allegedly attempted to videotape her in the bathroom.
Her attorney states, “She had to endure a workplace that was better suited to the male-dominated firefighting houses of the 1940s than of the 21st century…What happened to her is inexcusable and unacceptable.” In her complaint, male firefighters would comment about her body and claims that one said her place was at home “naked, making food, and babies.” Captain Jeff Wetteland, named as a defendant, propositioned her for oral sex and told her he would give her pinkeye by “farting on her pillow.” At another point, Wetteland allegedly slapped her buttocks in view of the other firefighters.
In October 2010, according to the suit, she found a camera hidden in a paper towel dispenser in her bathroom at the station. Former Captain Aaron Adair, another defendant in the suit, was charged with placing the camera there in an attempt to get a video of her. He pleaded no contest to charges of voyeurism and tampering with evidence, resigned from the department, and received probation on the charges. The suit alleges that she found the camera behind a transparent oval covering. Police were called to investigate. Before she could meet with them, Adair told her to give him the memory card from the camera, saying it was his. He allegedly told her not to do anything to hurt his career, and she reluctantly gave him the card, fearing she could face insubordination charges if she refused. When she later called Adair and asked him to return the card, he said he destroyed it and would deny knowledge of the camera if anyone asked about it, according to the lawsuit. The suit alleges that defendant Jerry Adair—brother of Aaron—and Aaron Adair both confessed to placing the camera there, which Aaron said was intended to get images of Noah. Aaron Adair said he destroyed the memory card by breaking it, putting the pieces inside of a squash and throwing it into a field and a canyon.
This lawsuit suit accuses the County of not doing enough in light of the voyeurism incident because they took no action against Jerry Adair or for any actions related to the placement of the camera or destroying the memory card or for his later claim that he lied to police. The suit states Wetteland received “minor” discipline after an investigation of harassment claims and, after his five-shift suspension was over, Wetteland would have gone back to supervising her.
In response to a question about whether county officials believe LACFD offered a safe work environment for women, a spokesperson said that the County provides annual training for supervisors and managers and biannual training for all employees to promote a safe work environment. “We consistently evaluate employee feedback, procedures, and processes related to this topic,” the spokesperson stated. “We take pride in providing all of our employees with a safe place to work.” The suit seeks damages, including compensation for back pay and punitive damages.
In a letter written to the judge during the sentencing hearing for the former captain, she writes, “I hoped to be respected for my skills and valued as a firefighter; instead, I found myself degraded by Mr. Adair and treated as a sex object.
ANALYSIS
It is believed that both men and women firefighter candidates take the same entry level test. In most departments, there is a written, physical ability, and interview. After the successful candidates are selected and a letter of intent to hire is sent by the respective department, there is additional medical and psychological testing and another interview successful candidates need to undergo to begin recruit academy.
Even at this part of the entry testing process, there have been accusations and litigations; there are demonstrated biases against women both in the physical capacity test (testing exclusively upper body strength) and the written test. The CPAT has pretty much leveled the playing field for all candidates among those departments that choose to use that standard of testing. The written test is a different story; some of the written testing is geared toward the mechanical (which are acquired skills), while other testing parameters are biased toward women candidates.
The recruit academy is the first place where women firefighters, seeking a professional career as a firefighter, can find themselves the victim of egregious conduct. Let’s look at the Fresno Fire Department (FFD) and the case of Michelle Maher. Maher alleges during the recruit academy she was told that she could not be successful in the fire department as a mother. She also alleges that a supervisor repeatedly asked her about her divorce and suggested she was slacking because she was a single mother. The claims also stated the FFD held her to a higher standard than male recruits; the FFD gave male recruits who received scores below 80 percent the opportunity to improve their scores but did not allow Maher to do the same. The FFD could not avoid convincing evidence that it held Maher to a higher standard than male recruits. Federal court jury found that she was a victim of gender discrimination and awarded her $2,468,141. Her attorney received more than $900,000.
Another example is at the Washington, DC Fire Department. An active-duty female firefighter spoke up for young female cadets, alleging sexual harassment at the DC Fire and EMS Training Academy. Fearing retaliation, the firefighter requested anonymity and states that when she joined a recruit class a few years ago; it came with a warning from a female academy employee about some of the male instructors. “The warning indicated that she ‘Be careful, because a lot of them don’t know their boundaries.’” Almost immediately, the firefighter stated that sexual harassment began. One instructor commented, “Guess who wore the wrong bra today,” and after a tough day of training, that same instructor got her alone and moved his hand from her shoulder slowly down to the top of her backside and other parts of her anatomy. She told him to stop.
Fearing for her job, the female firefighter kept quiet until she saw a local news channels recent investigation centering on two young female cadets, fresh out of high school, who accused two instructors of sexual harassment. DC Fire has reassigned the two instructors to positions outside of the academy and has launched an internal investigation. When the news media approached the DC Fire Chief Kenneth Ellerbe, he insisted the alleged harassment was “not” sexual in nature.
Ellerbe said, “What we believe happened was more some inappropriate language and touching, not of a sexual nature, but the matter made the young ladies uncomfortable.” However, one male DC Fire firefighter says he also felt compelled to speak out, saying he’s aware of cases in which superiors intimidated female firefighters into not filing complaints. This firefighter also has knowledge of two issues where issues of sexual harassment or harassment toward women had been basically brushed under the table.
In yet another recruit academy case, two women filed a federal lawsuit against the St. Paul (MN) Fire Department (SPFD) and city officials on claims they conspired to make the women fail firefighting training. Kathleen O’Connor and Julie Tossey filed a 13-count lawsuit on allegations of sex discrimination, age discrimination, and conspiracy. It also accuses the SPFD of deliberately sabotaging its own affirmative action goals. The two women, aged 49 and 42 respectively, both fire dispatchers, were offered spots in the firefighter recruit class. They were terminated about halfway through the 12-week academy and, according to the 28-page lawsuit, the woman said instructors intimidated them, forced them to take tests with broken equipment, and refused to give guidance that was provided to other recruits. Their attorney contends the SPFD just doesn’t want women in the fire department because it’s still a good-ole boys club. The SPFD has 17 women among its 370 firefighters.
This is not the fire departments first rodeo. In a previous 1988 lawsuit, the SPFD was sued by the Minnesota Department of Human Rights on claims it discriminated against women in its physical skills exam. The lawsuit was settled by a consent decree that extended the minimum amount of time to complete the test and gave the fire chief more discretion in picking candidates. Again in 1999, seven women who failed the physical test filed a complaint about confusing test instructions with the Department of Human Rights. The city later offered a second opportunity to take the test. Recently, the Department of Human Rights determined there was “probable cause” that St. Paul’s physical tests for firefighter candidates discriminated against women.
Probationary period. You successfully completed the recruit academy. Just when you thought it was safe, here comes the necessary probationary period—one that exposes women firefighters to continual harassment, sexual harassment, and discrimination.
An example was a female firefighter who was fired as an Orange Township, Delaware, firefighter after complaining of sexual harassment by a coworker. The woman firefighter sued the Delaware County Township and her supervising lieutenant, Keith Myers, saying she was the victim of gender discrimination. She was hired as a full-time firefighter by the township and was fired two weeks before her one-year probationary period was to expire. The jury opined she was fired because of her gender and that Myers acted “with actual malice” in recommending her termination. The jurors returned a judgment of $1.67 million against the township and $75,000 against Myers. In her lawsuit, she said that a male firefighter began sexually harassing her immediately after transferring into her unit and that Myers didn’t act on her complaints.
Testimony at the trial showed that township firefighters were shown sexual-harassment training videos on a split screen so they also could watch a NASCAR race. On July 17, 2013, Orange Township agreed to pay $875,000 to resolve this sexual harassment lawsuit that the female firefighter won earlier this year. The settlement agreement between her and the Delaware County township also will return her to firefighting this fall. The settlement put her back on the township payroll, and the settlement includes damages, back pay, and attorney fees.
Another example is found in Carlsbad (CA) Fire Department (CFD), where a female firefighter joined the CFD to complete her year-long probationary period. According to her, she completed all tasks assigned to her and passed her physical tests, some of which she believes were made even harder for her than her male counterparts. While living at the station on her work days, she was allegedly subjected to sexual harassment such as being pulled toward a male firefighter by her belt loops and being offered assistance with showering. Online comments about female toiletries appearing in a unisex bathroom at a fire station added to the hostile work environment.
According to the lawsuit, around the end of her probationary period she was told she could either resign voluntarily or be terminated by the department, the latter of which would hurt her chances of finding a position elsewhere. She felt she had no other choice than to resign, and her wrongful termination lawsuit is asking for about $2 million in damages stating she was discriminated against because she was a woman trying to get into a fire department that has always been all men. The complaint states she was forced to leave her job simply because she was a woman.
A woman firefighter’s career can becomes especially difficult because of the constant harassment, sexual harassment, and discrimination. An example of a long-term firefighter filing a lawsuit against a large city occurred in the City of Houston, Texas, alleging that racist and sexist graffiti aimed at two female firefighters was part of a pattern of harassment and sexual harassment; the female firefighter who filed the suit wanted the alleged pattern of behavior to change.
The lawsuit says the pattern of hostility against the woman firefighter started in 2000 when she worked at Station 46. Among the allegations are that a fill-in firefighter sexually harassed her, and “Rubbed up against her… asked her to sleep with him, climbed into her bed while she was in it.” The lawsuit goes on to say that when she later filed a formal complaint, other firefighters began to treat her differently. Her attorney notes, “One of the things that we’ve noticed is that in the fire department is that every time you speak out about misconduct, it’s deemed an act of disloyalty.” The firefighter also claims the harassment followed her as she moved from station to station. At Station 92 near Bush Intercontinental Airport in 2007, “The pictures of her children, including her deceased daughter, were removed from her locker, torn up, and placed in the trash.” In April 2009 at Station 54, the lawsuit says, “She went to take a shower and was scalded by hot water… the cold water line to the shower had been turned off at the valve.” Also, in July 2009, she and another female firefighter say racist and sexist graffiti was targeted at them at Station 54.
One would think that male firefighters have matured to a point where egregious behavior against female firefighters would cease. If you believe that; you are wrong.
Stay tuned for Part Two of this important topic next month.
MORE JOHN K. MURPHY
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FMLA Pitfalls for the Fire Service
- Legal Fire Prevention: Pregnancy Policy
- Legal Fire Prevention: Social Media Policy
- Mandatory Firefighter Medical Examinations
- Can “Failure to Train” Lead to Litigation?
- Lessons Learned: Discrimination against a Disabled Firefighter
