Earlier this year, the U.S. Supreme Court handed down two important decisions regarding sexual harassment (Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth). These two decisions reaffirm the critical need for fire departments to seriously address potential sexual harassment on an ongoing basis.
As Justice David H. Souter observed in delivering the Court's opinion in the Faragher case, "It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace." The fire service (career, volunteer and combination) certainly is no exception.
Sexual harassment is a form of sexual discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. The courts have found two general types of harassment. One is "quid pro quo" harassment, in which sexual favors are traded for job benefits. "Sleep with me and you will get a promotion" is the classic example. Imposing this kind of condition is an abuse of the authority granted to a supervisor by the organization (be it a business or government agency). Thus, when this type of harassment occurs, most courts automatically impose liability. It does not matter whether others in the organization knew or approved of the harassment.
The other form of sexual harassment is the creation of a "hostile environment," whose definition is much less clear. It occurs when sexual conduct (words or actions) creates an intimidating, hostile or offensive working environment. This is a much more subjective determination that never has been well defined. Further, it has been necessary to show negligence on the part of the employer in order to successfully make this claim. The worker has been required to prove that the employer knew (or should have known) of the harassment and did not try to stop it.
The Faragher case is of particular interest because it involves a public employee in an occupation similar to the fire service. Beth Ann Faragher was a lifeguard for the City of Boca Raton, FL. She claimed that several male supervisors created a sexually hostile environment at the beach by subjecting her to uninvited and offensive touching, as well as making lewd remarks and speaking of women in offensive terms. The city had a sexual harassment policy, but it had not been distributed among the city's lifeguards. Also, she did not complain to higher management about the hostile environment at her workplace, a remote beach location.
Under the Court's June rulings a worker no longer needs to show that the employer was negligent in its failure to stop or prevent harassment. Instead, courts will decide based upon the doctrine of "vicarious liability," under which an employer will be held liable for sexual harassment by supervisors.
Jane Howard-Martin and Chris-topher Ramsey are Pittsburgh attorneys who have carefully studied the Court's decisions. They point out that the Court has blurred the distinction between the two types of sexual harassment claims.
"Now, once an employee establishes that the alleged sexual harassment by a supervisor is 'severe or pervasive,' the employee has asserted an actionable claim under Title VII for which employers are automatically liable," they write. If the supervisor sought favors, made job-related threats or merely created a hostile environment, the employer is liable, regardless of whether it knew (or should have known) of the actions.
There is no defense to vicarious liability in cases in which sexual harassment results in a tangible employment action, such as a hiring, firing, demotion or promotion. How-ever, in cases involving a hostile environment, but no specific employment action, employers may be able to establish a defense to protect themselves from liability.
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.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.