Last June, the Supreme Court set a new standard for liability whenever a supervisor sexually harasses a subordinate. Employers (including fire departments) are automatically liable for any sexual harassment by a supervisor that results in a tangible employment action, such as discharge, demotion, failure to promote or an undesirable reassignment.
Employers also are liable if the sexual harassment creates a hostile environment, but does not result in a tangible employment action. In these "hostile environment" cases, an employer can escape liability by making two showings. First, it must show that it used reasonable care to prevent and correct any sexually harassing behavior. Second, it also must show that the employee failed to take advantage of opportunities provided by the employer to prevent or correct the harassing behavior.
There is no definitive statement of what constitutes sexual harassment in the workplace. Determining when sexual harassment results in a tangible employment action is relatively straightforward. However, determining whether the sexual harassment has created a "hostile environment" is far more difficult.
There is no legal definition of a hostile environment. Indeed, it may be virtually impossible to define because it depends largely on an individual's perception. What one person considers an innocent situation may be quite threatening and hostile to another, but certain types of behavior clearly are harassing, and must be avoided:
- Vulgar language.
- Untoward touching.
- Inappropriate tone of voice.
- Commenting on a person's body parts.
The new era has been summed up by a Washington attorney who said, "It's pretty clear to me you need a greater formality than…before to avoid liability." That will be especially difficult in the firehouse.
The decisions cleared up a decade of confusion about when an employer is liable for sexual harassment. A fire department can avoid liability in only a very limited set of circumstances. There has been a scramble among employers of all types to protect themselves against potential sexual harassment complaints.
The first step is to develop an anti-harassment policy. The department must have a clearly written, strong policy statement prohibiting and condemning sexual harassment. There also must be clear procedures for responding to complaints.
One private-sector executive has said it is "economic suicide to run a company…without a written policy." It is equally dangerous for a fire department to operate without a written statement that emphasizes the commitment of management to "zero tolerance" toward sexual harassment. However, it is not enough for a fire department merely to have a sexual harassment policy. That policy must be supported by a tangible commitment from the chief and all senior management. It must be regularly communicated to all members.
Private-sector employers are dramatically increasing their training regarding sexual harassment, and fire departments should be doing the same. It is important to train all employees - not just supervisors. Line officers need to know how to recognize harassment and what steps they must take to prevent it. Further, they need to recognize that preventing harassment is a priority for top management. Employees need to know what constitutes harassment, what to do if a member observes harassment and what they can do if they feel they are being harassed.
Especially in the generally rigid command structure of fire departments, it is essential to have a means for reporting harassment outside the direct chain of command. It may be valuable for a department to ask employees whether they have experienced sexual harassment, and to have a designated professional make follow-up contacts with employees who answer in the affirmative.
Lawyers say they have not seen a measurable increase in harassment litigation since last June's decisions, but some trends are beginning to emerge. Cases will focus on whether an employer has a solid affirmative defense. Matters such as the scope of a department's policy and its implementation will be crucial. Already, though, there have been several court rulings interpreting last June's decisions that should be of interest to the fire service.
In Williamson v. The City of Houston (148 F.3d 462), a Houston police officer repeatedly complained to her sergeant that a male co-worker was sexually harassing her. After she filed a complaint, the sergeant retaliated by taunting her and transferring her to a less desirable unit for lower pay. The court rejected the city's argument that it did not have proper notice of its responsibilities. It said the Supreme Court rulings provided adequate notice to the department, and the officer had followed the City's harassment complaint policy. Like the Houston Police Department, fire departments are on notice that their policies and practices must be consistent with the new standards. Fire departments will be liable for damages resulting from sexual harassment.
In two other decisions, lower federal courts have applied these principles to cases involving racial harassment. It is reasonable to expect that fire departments will be held accountable for harassment of all legally protected classes, such as racial minorities and older workers or volunteers.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
