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A female firefighter complains about being sexually harassed by a male coworker. The fire department initiates an investigation. When the firefighter claims she cannot continue to work with the harasser, the department temporarily transfers him to another station.
The firefighters’ union objects to the transfer, claiming it is punitive, indicating the department has concluded that the female’s allegations are valid without even investigating. Based on the union’s objection, the department decides to transfer the female firefighter as well.
Both the union and the department have just fallen victim to the retaliation trap. The retaliation trap is in some respects an attorney’s dream, assuming the attorney represents the female firefighter in the above scenario. That attorney has just been handed a slam-dunk victory in a case that otherwise might be difficult to prove.
It is no wonder that employment attorneys love retaliation cases: they are just so easy to prove!
The retaliation trap in detail
To understand the retaliation trap, we need to look a bit deeper at the example above. It is also important to understand that the retaliation trap can occur in contexts besides sexual harassment, including race, religion, disability, sexual orientation or ethnicity discrimination, to name a few.
In our example, the female firefighter has alleged that a male firefighter sexually harassed her. An allegation is merely an accusation and is by no means proof that harassment actually occurred. Maybe he did cross the line, maybe he did not. Perhaps his conduct, while offensive, was not enough to constitute sexual harassment.
In the end, if the accuser decides to file a lawsuit, she will have the burden to prove that she was sexually harassed and that the conduct created an objectively hostile work environment. That can be a difficult burden to meet. Sexual harassment cases can come down to a “he-said, she-said,” making it a challenge for the victim to disprove that it was anything more than a simple misunderstanding.
Another obstacle that the accuser in a sexually hostile work environment case has to overcome is that the fire department is not automatically liable simply because the female firefighter was harassed. The fire department often has viable defenses that can be raised. The union is not even remotely involved as a possible defendant in the typical hostile work environment case.
What happens when we try to be “fair”?
So what changed when the female firefighter was transferred to another station? In a word, everything!
When the department transfers the accuser, the case is no longer about whether she was actually sexually harassed. Believe it or not, that issue becomes almost irrelevant. The case just became simplified, with the new streamlined issue being: did she make a complaint about sexual harassment and was she then transferred?
Forget about the accuser having to prove she was sexually harassed. Forget about having to prove it was more than a simple misunderstanding or disprove the “he-said, she-said.” Forget about having to overcome any defenses the department may have had. The sole issue is this: Did she make a complaint and was she then transferred? The inescapable answer is that she was and the case is so clear cut – so easy – that even a caveman attorney (or first-year law student) could win it!
The fire department is now clearly on the hook for retaliation without the defenses it previously had to the sexually hostile work environment claim. In addition, the union is now a likely co-defendant due to its position of advocating for the retaliation against one of its own members.
Could they possibly have made the case any easier? I don’t think so.
So what do we do?
So what should a fire department (and a union) do to avoid the retaliation trap?
First, the most important thing we all can do is avoid the underlying sexual harassment from occurring in the first place. Sexual harassment is a major problem in many if not most fire departments. Addressing the sexual harassment problem takes proactive leadership coupled with diligence every single day to ensure the workplace remains free from objectionable behavior.
That means training all personnel on sexual harassment and holding officers accountable. Officers must be able to recognize sexual harassing behavior when it occurs, and then have the fortitude to do what they are supposed to do: be a leader. An officer is not just a senior-grade firefighter! An officer cannot sit back and observe inappropriate harassing behavior hoping for plausible deniability.
Second, everyone on both sides – labor and management – needs to understand the consequences of the retaliation trap, and be able to recognize it developing. Both sides will be defendants and will likely pay equally if the trap is sprung. That means both labor and management have a stake in the matter and need to take affirmative steps to avoid it.
What are those steps?
When an allegation of sexual harassment (or any discrimination for that matter) is made, if there is a reasonable way to avoid moving the accused employee(s) until an investigation is complete, do it. If not, separate the parties in the least punitive manner possible, mindful that any change in the accuser’s status will likely be considered retaliation. Good intentions do not matter!
Get the investigation started immediately and completed as soon as possible. That does not mean taking shortcuts or making a rush to judgment. Getting it right is much more important than rushing the investigation. However, letting a sexual harassment investigation drag on can be as counterproductive as failing to investigate. A timely investigation followed by a timely decision is what is needed.
While the investigation is ongoing, officers must remain on guard for retaliation against the accuser by friends and supporters of the accused. In addition, the accuser may be primed to find retaliation even in the most innocent of actions. This reality creates an extremely difficult dynamic to manage. For this reason, it is often advisable to bring in human resource specialists to help everyone involved navigate through the inevitable minefield.
The retaliation trap is a recurring nightmare for fire departments. It often develops out of an understandable desire to be fair in dealing with a complicated interpersonal situation between co-workers.
The trap functions so perfectly that an accuser can actually lose an underlying claim (i.e.; in a sexual harassment case, the court can conclude there was no sexual harassment), but win the case on a retaliation claim because the accuser was moved after filing a complaint.
Fire service leaders – whether on management’s side or labor’s side – need to understand the consequences of falling into the retaliation trap and take affirmative steps to avoid it.