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This defense consists of two necessary elements. First, the employer must show that it used "reasonable care" to prevent and promptly correct any sexually harassing behavior. Second, the employer must show that the employee "unreasonably failed to take advantage of any preventative or corrective opportunities provided." Unless the employer can prove both of these, it will be held liable.
The firehouse is a unique workplace because of the significant social element that is an important part of virtually every station's culture. It is one of the few workplaces where personal activities such as meals, sleeping and recreational activities are common while on duty. Additionally, the fire service, which until the current generation was an exclusively male environment, continues to be dominated by men, especially in the leadership ranks. All this creates a great potential for harassment, intentional or not.
What should fire departments do to protect themselves? How can a department prevent harassment and show that it has exercised the "reasonable care" that the Court has said is necessary to defend against a claim?
For departments that are a part of a local government, the first step should be to consult with the government's personnel and legal officials to make sure that the department is complying with government-wide policies. However, that may not be enough. In light of the fire department's unique characteristics, local government policies must be tailored to take into account the firehouse culture.
Howard-Martin and Ramsey offer valuable guidelines for all employers that fire department leaders should adapt to their situation:
- Establish a comprehensive program to prevent and promptly correct any sexually harassing behavior.
- Promulgate an effective anti-harassment policy that is suitable for the department's circumstances. Policies that work in an office or factory environment might be totally irrelevant in the firehouse.
- Implement an effective complaint procedure. Given the hierarchical, quasi-military system that is common in the fire service, there must be alternative routes of complaint, outside the direct chain of command.
Howard-Martin argues that this has taken on increased importance with the new rulings. The complaint process needs to be obvious to all employees, and they need to believe that it is all right to complain. She anticipates future litigation on cases in which an employee failed to use available complaint procedures.
- Distribute the anti-harassment policy broadly and regularly. Provide regular training on it to all personnel, both officers and firefighters. For officers, it is vitally important that they be trained so that they can recognize harassment and know how to respond to complaints.
While not explicitly spelled out in the Supreme Court decisions, Howard-Martin believes courts will expect periodic retraining in order to find that an organization exercised "reasonable care." Indeed, notices from law firms already have begun to appear in the legal trade press offering training seminars to employers on the new sexual harassment rules.
- Monitor the workplace to uncover potential problems before they become serious. Address them promptly.
- Investigate all claims of sexual harassment promptly and thoroughly, even those that appear frivolous. Officers must be able to recognize even the most informal complaints.
- Take action immediately when policy violations are found. These actions should ensure that victimized employees are made whole and deter harassers from future misconduct.
The Supreme Court's decisions represent a significant change in the law regarding sexual harassment. The new rules created by these decisions are likely to encourage more complaints and legal actions. Any department that does not make it a priority is exposing itself to significant potential liability. The time to act is now.