It has been three years since the U.S. Supreme Court rendered two significant decisions refining the law of sexual harassment. Those decisions require every employer, including fire departments, to provide a work environment that is not hostile because of harassment by supervisors or co-workers.
Since then, there have been numerous administrative and legal actions intended to further define a "hostile environment" and to clarify what steps employers must take to meet the obligation to provide a work environment that is not hostile.
Employers have long been held responsible for the sexual harassment that leads to a tangible employment action, such as discharge, demotion, failure to promote or reassignment to a less-desirable position. The Court's 1998 decisions expanded the protection from sexual harassment to include protection from situations in which the harassment creates a "hostile work environment." Employers must make a reasonable, "good faith" effort to prevent and correct this kind of discrimination in order to avoid liability.
Some types of behavior clearly are unacceptable. These include:
- Unwelcome sexual advances by supervisors or co-workers.
- Sexual joking, demeaning sexual inquiries, vulgarity, obscene gestures or lewd comments.
- Display of sexually oriented posters, magazines or other graphic materials.
Because of our individual differences in personality, character and values, it is impossible to define conclusively what other activities make a work environment hostile. A situation that is completely benign to some firefighters might be quite threatening to others.
Although there is no simple way to determine when an employer has made a good-faith effort to prevent and address sexual harassment, there are clear principles that should guide departments. Several recent developments should help fire departments and firefighters to better understand their responsibilities.
Perhaps the most significant was the June 1999 publication of sexual harassment enforcement guidelines by the Equal Employment Opportunity Commission (EEOC). These guidelines clarify many technical legal issues and offer valuable general guidance for fire department managers. Fortunately, the EEOC guidelines are oriented toward preventing sexual harassment, rather than punishing it.
The commission offers this observation: "In most circumstances, if employers and employees discharge their respective duties of reasonable care, unlawful harassment will be prevented and there will be no reason to consider questions of liability."
The guidance concludes, "The Supreme Court rulings … create an incentive for employers to implement and enforce strong policies prohibiting harassment and effective complaint procedures. The rulings also create an incentive for employees to alert management about harassment before it becomes severe and pervasive. If employers and employees undertake these steps, unlawful harassment can often be prevented."
Good communication is critical. All fire departments (career, volunteer and combination) must have written policies and procedures that are well known and effectively implemented. The best procedures will not satisfy any legal burden unless they are available to the firefighters in the station. If the department ignores harassment complaints and does not effectively investigate or act on complaints, then the department has not fulfilled its duty to exercise reasonable care.
Training should be an important element of the anti-harassment program. Departments must ensure that officers (and other supervisors) understand department policies and their individual responsibilities. The EEOC guidelines specifically highlight periodic training as one way to do that.
At a minimum, managers must understand what constitutes harassment, department procedures for handling complaints and the seriousness of the matter. Further, departments should provide every employee (this includes volunteers) with a copy of the sexual harassment policy and complaint procedure, and should redistribute it periodically. (Do you have your department's policy? Do you understand it?)
Any firefighter who believes that he or she has been sexually harassed has a responsibility to promptly report the harassment. A department can defend itself against liability and damages by showing that the purported victim did not notify the department so that it could have the opportunity to respond. Complaint procedures should encourage victims to come forward without fear of reprisal.
Employees must be able to make their complaints outside the chain of command. If that option is not available, it would be impossible to obtain protection from a harassing officer (or other supervisor). This raises special issues in the fire service, with its quasi-military, highly structured chain of command. Department leaders need to give special thought to ways to enable complaints of harassment without undermining the critical importance of maintaining the operational chain of command.
If the department has an effective program, firefighters will feel the freedom to express their complaints, and a prompt complaint will end the harassment. Department officials will quickly respond to determine the facts, and then act promptly to address any problem that is found. It is best to resolve these complaints as quickly as possible, and at the lowest possible level. They should be handled informally, if possible. There must also be a more formal process available to address complaints in the event that one of the involved parties is not satisfied with the results of an informal dispute resolution process.
Undoubtedly, sexual harassment still occurs in fire stations. However, representatives of several fire service organizations have said that the problem is not as blatant as in the past. While sexual harassment problems may be less evident today, the fire service must recognize that the potential for an explosive situation is always present. Like firefighter safety, it must always be a priority for department leaders, no matter how good the past record has been.
Sexual harassment never will be completely addressed by neat, objective legal rules. It is too much rooted in the complexities of human relationships. This is an area of the law in which liability is best avoided by strong leadership, rather than by legal rules alone.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.