Part 2: Discrimination and Diversity
This is the second in a series of a three-part article used as a primer of legal issues for fire service leadership. Keep in mind that 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, not just the select few.
Podcast: Fire Service Court: Discrimination and Harassment
The point of Part 2 article,is that harassment and discrimination coupled with the lack of inclusion are the most litigated issues in the 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 are the most litigated issues in the fire and EMS services with the most costly payout.
Discrimination is defined as the unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, sex, or disability. For example: assignment or change in assignment, arbitrary shift change, failure to hire and failure to promote.
DISCRIMINATION TYPES
- Pregnancy Discrimination
- Stereotypes and assumptions
- Accommodation
- See NFPA 1582, Annex D
- Creating lactation rooms for returning lactating firefighter mothers
- Religious Discrimination Accommodation
- Clothing
- Grooming
- Hair
- Facial Hair
- Hours of work
- Prayer times
- Day of non-work for religious observation – shift changes
- Disability Discrimination
- Has a disability or a history of a disability
- Perceived as having a disability
- Association with a disabled individual
- Americans with Disabilities Act (ADA) accommodation evaluation is a must
- Engage in interactive discussion with the employee
- Request employee medical information as consistent with ability to perform essential job functions
- Have a job description ready with physical and mental requirements as well as job hazards (see NFPA 1582)
- Consult with appropriate medical and legal personnel
- Consult with Union if collective bargaining agreement in place
- ADA Reasonable Accommodation
- Light duty: if you already have a light duty position, you must accommodate the disability under certain conditions (consult with your attorney on this question). If the department has never had light duty, the department does not have to create a new light duty position. (1)
- Reallocation of marginal job duties to others.
- Rest breaks frequently enough to accommodate the disability.
- Leave of absence with or without pay or using the Family Medical Leave Act (FMLA).
- Modification of job function to accommodate the disability but still providing essential job functions and pay with benefits.
- Assist devices such as wheelchairs, canes, crutches, or braces.
- Therapy animals of all types but generally relegated to therapy dogs. Have a policy in place to provide guidelines as to what constitute a therapy animal.
Age Discrimination: Special Rules
40 and Older with a Public Safety Exemption – under the Fair Labor Standards Act (FLSA) – §623(j)> Fire Department can refuse to hire, or can fire someone because of age, pursuant to a good faith plan that is not meant to evade the purposes of the ADEA.
- Commentary: Less Diversity Is Needed in the Fire Service
- Diversity: We Must Define This Issue Before We Can Solve It
- Joseph B. Muhammad: A Matter of National Security
- The Power of Diversity: It May Not Be What You Think!
Examples:
- Chicago: No person over 38 shall get an initial appointment as a probationary career firefighter or firefighter/EMT
- Seattle: No age limit
- Feds: Mandatory age of retirement
Diversity, Inclusion, and Retention: Then and Now
Your workforce has had a changed in its language, cultural norms, and differences, religion and religious practices, and the varied customs of your employees’ ethnicities. There’s also been a change in norms and attitudes of your firefighters and community.
Then and Now: Questions to ask yourself.
- What did your fire department look like when you joined? Now?
- What did your community look like when you joined? Now?
- What initiatives were taken to hire people from different backgrounds when you were hired? Were they successful?
- What initiatives are being taken to hire people from different backgrounds now? Are they successful?
- What initiatives were taken to retain people from different backgrounds when you were hired? Were they successful?
- Who has left your department since you were hired? Do the people leaving appear to share a protected characteristic?
- What initiatives are being taken to retain people from different backgrounds now?
Fire Department = Community
A fire department that resembles its community in demographic makeup is more likely to be able to provide effective service and garner more respect from citizens.
- For example, if your community has a large percentage of residents who speak Spanish, firefighters who also speak the language can better communicate with citizens during both emergencies and nonemergency interactions.
- Community members who are in an emergency situation or who have been through one recently may feel more comfortable speaking to someone with whom they can identify.
Diversity and Inclusion
- Eliminate the belief that diversity and inclusion initiatives mean that fire department standards must be lowered. Hire the best qualified.
- If fire department members are of the mindset that their colleagues are “family,” make sure their actions mirror the mindset
- Identify the steps the fire department should take so that every community member is comfortable walking into the firehouse
- Consider whether your department is ready to hire and retain its first woman/pregnant woman/religiously observant firefighter/transgender male, LGBTQIA+, etc.
- Identify fire department options for participating in events that “showcase” commitment to fostering diversity and inclusion in the workplace.
- Remain informed on your community’s position/response to the current political and social climate.
- Examine whether you have “problem employees” (both subordinate, peer, and supervisory) who have difficulty with the concepts of diversity and inclusion in fire/EMS.
- Review your fire department’s policies on discrimination, harassment, and retaliation. Discuss with your colleagues whether they plainly explain what kind of actions are prohibited, with examples specific to Fire/EMS.
Cases
There are thousands of these cases on the books and they are against all different kinds of fire departments, both large and 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, won $245,000.00.
- Two Michigan firefighters file sexual harassment lawsuit against township and Fire Chief. Firefighters 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. (2)
- A battalion chief with the East Haven (CT) 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.(3)
- 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. (4)
Burdon of Proof: You Must Prove your Case.
The Burdon 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 whether career or volunteer, requires real people to accomplish the mission of the department. They bring a lot of experience and sometime baggage into the fire 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 cause turmoil among your firefighters. I term these ongoing personnel issues “employee fires” as 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 fire 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.
Fire departments cannot sweep these issues “under the rug” hoping they will go away…but 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.
Endnotes
(1) https://www.firelawblog.com/wp-content/uploads/sites/19/2020/10/Hawthorne-v.-City-of-Prattville_-2020-U.S.-Dist.-LEXIS.pdf
(2) Allen v. City & Cnty. of Denver, United States District Court for the District of Colorado – Civil Action No. 20-cv-02952-MEH
(3) Parlato v Town of East Haven and East Haven Fire Department. CIVIL ACTION NO. 3:22-cv-1094 (US District Court Connecticut)
(4) 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)
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.
