A few years ago, I had the distinct pleasure of serving on a captain process assessment panel for a large fire department. The candidates were allowed to prepare for the interview by reviewing the questions and formulating their answers just prior to entering the room—that is, all the questions except for one. The agency wanted to hear the candidates’ spontaneous and candid answer to the last question, which was on diversity.
As with most competitive processes, a handful of candidates knocked it out of the park. Then there were those who struggled to reach for any personal anecdote that might demonstrate their “openness” to various minorities, entirely missing the point of the question. I think my mere presence put many of them into a tailspin. After several candidates had been through, I turned to the rest of the panel and said, “If I hear one more candidate say, ‘I love women, I have one at home,’ I’m going to lose it.” That wasn’t exactly what they were saying, but it was most certainly what they were suggesting. If you think you embrace diversity and are immune to the traps of sexual harassment, gender-based discrimination and retaliation because you love your mom or your wife, please keep reading.
Varying types of discrimination and harassment
Too often the human tendency is to latch onto a term or concept and focus so deeply on a single, narrow definition or understanding that the possibility that there could be broader meaning to an issue escapes us. There are few subjects where that reigns more true than sexual or gender-based harassment and discrimination. In addition to not fully understanding the scope of this type of harassment and discrimination, we try to leverage that ignorance in defense of poor behavior. Before we can enter into an intelligent conversation about how we manage it within the fire service, it may be helpful to understand what “it” is.
When discussed, there are usually a couple terms that get used interchangeably. Sexual, sex or gender-based harassment or discrimination are oftentimes used to mean the same thing. A common misconception is that there must be some type of sexual component to the interaction—such as unwelcome sexual advances, dirty jokes or language, or discussions about sexual activity—to hit some type of qualifier threshold for protection under Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. While those may be the more obvious indicators of sexual harassment, they most certainly are not the only form of gender-based harassment captured by Title VII. Your work environment does not have to look like a scene from “Mad Men” to qualify as hostile toward women or any protected class, for that matter.
In order to project the professionalism our communities expect, we must fully grasp the implications of all of our actions. We must understand the difference between sexual harassment and sex/gender-based discrimination, in addition to what constitutes retaliation. In doing so, we can create a hospitable workspace for all and keep ourselves out of court and the media for these damaging situations.
There are commonalities between sex/gender-based discrimination and sexual harassment, and they most certainly are not mutually exclusive. Quite the contrary, they often times go hand-in-hand. Neither form of harassment or discrimination requires a male/female interaction. Both forms can be experienced between like genders.[1]
Sexual harassment tends to be more overt and easier to identify. Indicators include, but are not limited to, unwelcome physical advances, openly visible sexually oriented materials (either printed or electronic) and sexually oriented comments or jokes. These are things that show up in the more basic sexual harassment training and that have typically defined our understanding of a sexually oriented hostility in the workplace.
Supervisors need to be particularly careful with how they communicate or carry-on with their subordinates. The supervisor-subordinate relationship is prime for quid pro quo interpretations. The supervisor has an implied power over the subordinate, making any suggestion of sexual harassment particularly egregious. Because that subordinate may be compelled to accept the behavior for fear of retaliation, the law is more sensitive to this dynamic.
Sex/gender-based discrimination occurs when an individual is not afforded the same rights, privileges or opportunities as their peers of the opposite sex. This type of discrimination and harassment can be more insidious and pervasive. Examples can include, but are not limited to, lesser work assignments, denied access to professional development, failure to promote, and disparity in the disciplinary process. This type of discrimination tends to be more subtle, because to the untrained eye, the driver for the adverse action is not obvious.
Sex/gender-based discrimination or harassment can be the result of either conscious or unconscious stereotyping. In her paper on Unconscious Bias Theory in Employment Discrimination Litigation, Audrey J. Lee explains that, “stereotypes cause discrimination by influencing how individuals process and recall information about other people.”[2] If you expect a woman to act a certain way based on preconceived ideas or stereotypes, when they fail to meet your expectation, they are typically treated more harshly than a male individual demonstrating the same or like behavior.
For example typical stereotypes for women include:
- Women are not meant to speak out.
- Women are supposed to be submissive.
- Women are not meant to be the hero, rather the one being saved.
- Women are rarely really in charge.[3]
Hopefully, we understand that these things are not true, yet when a woman takes a strong stand on an issue or makes decisions or takes action without asking permission, the perception can be that she is somehow being bossy, or worse, insubordinate or a “bitch.” Another way to look at it: When a woman interrupts, she’s rude; when a man does it, he’s adding to productive discourse.
Supervisors and peers need to be aware of the indicators of sex/gender-based discrimination and understand that often times it can be subconscious, yet equally as damaging and illegal. Susan T. Fiske, as cited in Lee’s work, describes some of the circumstances psychologists have identified when stereotyping and biased behavior is likely to occur. They include:
- The target has “solo or near solo” status, like when they are the only woman or minority in a normally male or white environment.
- A member of a previously omitted group takes a position considered nontraditional for his or her group, such as women entering the fire service or advancing beyond the leadership “glass ceiling” within the occupation.
- Perceived lack of fit between the targeted individual and the occupation or role.
- The criteria for evaluation—be it for hire, advancement or disciplinary proceedings—of the targeted group or individual is ambiguous and/or subjective.[4]
Do any of these conditions look familiar? Knowing and understanding the implications of the supporting research should bring us all to attention. Feeling like we can check the “I didn’t sexually discriminate” boxes because there were no sexual overtones or implications does not mean we’re free and clear. Start evaluating all of the processes within your organization. You may be surprised how subjective and ambiguous they are. Then picture yourself trying to defend those very processes when they’re challenged in a court of law.
Understanding retaliation
The last matter to clarify is the concept of retaliation. Human nature being what it is, when threatened, which is typically the case when a claim is filed against you or your agency, the inclination is to somehow make the claimant “pay” for what they’ve done. According to the Equal Employment Opportunity Commission (EEOC) website, “Retaliation is a coping mechanism—a way of alleviating the psychological discomfort associated with perceived injustice.”[5] The law recognizes this propensity for retaliation and addresses it independently of the initial harassment or discrimination claim.
The EEOC and federal lawmakers take it so seriously that, “The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”[6] In order to further protect those who feel they are being treated disparately, “… it is illegal for an employer to refuse to promote an employee because she [he] filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred,” according to the EEOC.[7] Fostering an environment that is even less hospitable than prior to a claim being filed is a recipe for disaster. Nearly 50 percent of all EEOC discrimination findings are based on the retaliation.[8]
Recognizing that sexual, gender-based discrimination and harassment are not simple issues is the first step toward avoiding claims. Leadership and the workforce must understand the depth and breadth of the issue and potential. The typical scare tactics-style harassment training, where we’re led to believe that everything we do can be harassment, is the wrong approach. It’s time to get past the superficial and get down to the core of the matter.
In sum
We shouldn’t want a diverse workforce because we think minorities are swell and you love your mom. We should want diversity because it enriches our personal experiences and greatly improves our service model potential. Truth of the matter is your unconscious stereotype biases were established before you were 10 years old. It takes presence of mind and a strong, well-crafted management framework to avoid the common pitfalls of discrimination, harassment and retaliation.
References
[1] Equal Employment Opportunity Commission, Sex based Discrimination, https://www.eeoc.gov/laws/types/sex.cfm (accessed May 18, 2016).
[2] Audrey J. Lee, "Unconscious Bias Theory in Employment Discrimination Litigation," Harvard Civil Rights-Civil Liberties Law Review (http://www.law.harvard.edu/students/orgs/crcl/vol40_2/lee.pdf) 40 (2005): 483-484.
[3] Holly Brewer, List of Gender Stereotypes, 2016, http://www.healthguidance.org/entry/15910/1/List-of-Gender-Stereotypes.html (accessed May 8, 2016).
[4] Audrey J. Lee, "Unconscious Bias Theory in Employment Discrimination Litigation," Harvard Civil Rights-Civil Liberties Law Review (http://www.law.harvard.edu/students/orgs/crcl/vol40_2/lee.pdf) 40 (2005): 484.
[5] Equal Employment Opportunity Commission, Retailiation - Making it Personal, 2014, https://www.eeoc.gov/laws/types/retaliation_considerations.cfm (accessed May 29, 2016).
[6] Equal Employment Opportunity Commision, Retaliation, https://www.eeoc.gov/laws/types/retaliation.cfm (accessed May 18, 2016).
[7] Ibid
[8] Ibid
MARTHA ELLIS has been in the fire service for 23 years. She has worked as a hot shot wildland firefighter and has served as a structural firefighter for nearly 22 years in the Salt Lake Valley. She holds a master’s degree in homeland security from the Naval Postgraduate School, a graduate certificate in conflict resolution and mediation from the University of Utah, and is a certified facilitator with the Arbinger Institute. She was also one of four recipients of the Harvard Kennedy School of Government fire service fellowship awards in 2012.
