During a case discussion with my colleague, Mark Robens from Arizona, we noted the similarities in the fire department case we were reviewing and numerous others with a similar fact pattern and outcomes. We called it a Groundhog Day event. In the fire service, it appears that we are in the 1993 film with Phil Connors, a cynical television weatherman covering the annual Groundhog Day event in Punxsutawney, Pennsylvania, who becomes trapped in a time loop forcing him to relive February 2 repeatedly. [i]
- Discrimination, Diversity, and Harassment: A Legal Primer for Fire Department Leadership
- Fire Chief Liabilities and Avoiding Legal Pitfalls
This article is focused on the movie theory that we are trapped in a sort of Groundhog Day in the fire service as it relates to the legal issues facing us, especially in the area of discrimination, harassment, and bullying affecting the rights of firefighters and fire service every day.
A sort of rinse and repeat of bad behavior daily.
The fire service consists of approximately career 27,174 departments and about 30,000 volunteer departments. [ii] Career firefighters are around 353,000 to 375,600 and the number of volunteer firefighters falls between 655,800 and 698,000. [iii] That is a lot of opportunity for fire departments to do things right or do things wrong, and fortunately we do most things right and a few things wrong. The things we do wrong, however, are well publicized in the media and in the courts, which have costly outcomes in the form of awards, penalties, and careers destroyed.
Firefighter Legal Protections
Firefighters and most workers in the United States have certain protections at work preventing discrimination, harassment, and retaliation. Many of us are familiar with the Federal and State laws protecting you at work, but just for clarification, discrimination is when an employer treats an employee or job applicant differently or unfairly because of their race, color, religion, sex, national origin, age (40 or older), disability, or genetic information. For those historically discriminated against, there is new legislation clarifying and protecting the rights of pregnant or lactating employees, protecting your rights as an LGTBQI worker, and many other legal protections as an employee or firefighter. [iv]
Another protection is being able to work in a harassment-free workplace. Now I know that for new employees, pranks and hazing are a part of the initiation of new firefighters, but when it rises to the level of harassment, it becomes illegal conduct. Workplace harassment is unwelcome conduct based on a person’s race, color, religion, sex, national origin, older age, disability, or genetic information. Many times, we have a difficult time identifying what harassment actually looks like, and here are a few examples: offensive jokes, objects, or pictures, name-calling, physical assaults, threats, and intimidation becomes unlawful when enduring the conduct is required to continue employment—it creates a work environment that is intimidating, hostile, or abusive. [v]
Sexual harassment in the fire service is generally against our female members but can also be directed at our male firefighters as well. Sexual harassment includes unwelcome sexual advances or requests for sexual favors or quid pro quo. It can also include offensive comments about someone’s sex or gender identity. Sexual harassment is unlawful when it is so frequent and severe that it creates a hostile or intimidating work environment and it results in an adverse employment decision (e.g.: the person is demoted, denied promotion, suspended, or fired). [vi]
Retaliation happens when an employer treats someone poorly because they engaged in a protected activity. Protected activities include filing or being a witness in an EEOC charge or investigation, talking to a supervisor or manager about discrimination or harassment, refusing to follow orders that would result in discrimination, whistleblowing, and resisting sexual advances or intervening to protect others.
Common retaliation methods include firing, demotion, denying benefits such as time off or light duty, denying promotions, and intimidation or threats. [vii]
Firefighter Litigation
Firefighters litigating against their fire departments occurs almost on a daily or weekly basis. If you are interested in recent cases, you should Google Firefighter Litigation to see what is out there. My colleague Curt Varone hosts a website called firelawblog.com (https://www.firelawblog.com/) and he reports on a near-daily basis the legal issues facing the fire service today with current cases and outcomes. Most if not all of the litigation incorporates acts against firefighters violating their civil rights and the complaint against the Department is replete with these terms: violations of the Civil Rights Act of 1964, discrimination, harassment, and retaliation, and many of those cases are moved to a federal court and not in state court. Many of those cases are filed by the Department of Justice or after an investigation by EEOC and other protective agencies giving the firefighter the right to sue their department.
What is the actual problem?
The actual problem is the failure of leadership to lead, the permissiveness of the department to tolerate this behavior, and the failure of leadership to correct bad behavior. Complicit non-action on the part of the administration is condoning bad behavior. An example in one case is a targeted firefighter who was being harassed and filed a written complaint to her superior and the fire chief of the harassing and discriminatory behavior directed towards her by fellow firefighters. The superior officer and chief failed to act on the complaint and the behavior continued. The firefighter then filed a complaint with the EEOC and the Department of Justice filed the litigation on behalf of the firefighter against the department. The outcome was predictable (the firefighter won and the fire department lost), but did that resolve the real issue or the underlying issue? As this involved a female firefighter, the culture and permissive bad behavior by members of the department led to this poor outcome. But in my experience the gender of the firefighter is irrelevant. It happens to male firefighters or firefighters of color as well.
Looking at the failure points are the following: employees bringing bias and bullying into the workplace, poor or outdated policies, complicit behavior, failure to act immediately to resolve a complaint, tacit approval of the behavior by all members of the organization, failure to support and protect your vulnerable employees, failure to establish a safe and confidential reporting mechanism, failure to train your firefighters as to acceptable, and unacceptable behavior and poor hiring and termination practices.
Solutions and Recommendations
There is the fable of the genie, recently released from a thousand-year sleep by a firefighter, who granted the firefighter three wishes. Being that the firefighter loved Hawaii, asked the genie to build a bridge from Seattle to Honolulu. The genie was stunned and indicated that it was impossible and could not be accomplished, so the firefighter made a second request: “Tell me how a fire chief thinks about discrimination.” The genie says, do you want that bridge to Honolulu to have two lanes or three lanes?
The moral of the story is that the fire chief is the leader of the department and must enforce the laws protecting their firefighters regardless of gender, color, beliefs, religion, or other protections under the law. This applies as well to all employees of your department.
The department’s mission and vision statement must include the creation of a safe space for your employees both in the station and on the street
You can create hundreds of policies to protect your employees, but if they are not applied to all employees equally, then they are worthless, and firefighters and the fire department are harmed by omission or commission of the violations of the law. Failure here is not an option and all members must be protected from this behavior
Not every day has to be groundhog day and all members of the department have a role to play in preventing repeat litigation against their department.
End Notes
[i] https://en.wikipedia.org/wiki/Groundhog_Day_(film)
[ii] https://apps.usfa.fema.gov/registry/summary
[iii] IBID
[iv] https://www.usa.gov/job-discrimination-harassment
[v] IBID
[vi] IBID
[vii] IBID
JOHN K. MURPHY, JD, MS. PA-C, EFO, deputy chief (ret.), has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic and retiring in 2007 as a deputy chief and chief training officer. He is a licensed attorney in Washington State since 2002 and a licensed physician’s assistant since 1977. Murphy consults with fire departments and public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a legal and management educator, frequent legal contributor to Fire Engineering, participant in Fire Service Court Radio, a blogger and a national speaker on fire service legal issues. He is a distance learning instructor with the University of Florida Fire and Emergency Services undergraduate program.
This commentary reflects the views of the author and not necessarily the views of Fire Engineering. It has not undergone the standard peer-review process, and should not be construed as legal advice or counsel.
