New Jersey Decisions Reinforce Sexual Harassment Rules

We all know that the firehouse is a unique workplace. Firefighters take meals together. There are often idle times while on the job when they can enjoy recreational activities together. And, where else are employees expected to sleep on the job?

The result is a workplace with more social interaction than others. This is one of the great strengths of the fire service. But, this combination of professional and social relationships also can cause problems. One of the most dangerous is sexual harassment.

In 1998, the U.S. Supreme Court rendered two decisions that expanded the concept of sexual discrimination to include the creation of a work environment that is "hostile." Employers must make a "good faith" effort to prevent a hostile environment, and to correct the situation when it occurs.

Unfortunately, these principles are very difficult to define. There can be no single, simple definition of a "hostile environment" because of the different personalities, values and character that makes each of us unique. The perception of a hostile environment depends on who is looking at it.

Much has been done in recent years to address sexual harassment, both in the fire service and in society at large. Numerous training and enforcement programs are in place to prevent and address occurrences of sexual harassment. (See Fire Law, August 2001, for details on the important elements of an anti-harassment program.)

While sexual harassment still occurs in firehouses, it appears to be less frequent and less blatant than in the past. But this is not a time for the fire service to relax, as the courts continue to review sexual harassment claims and impose tough standards.

This was highlighted in 2002 by two New Jersey court decisions that show zero tolerance for workplace harassment. These decisions expanded liability for harassment in New Jersey and placed greater importance on harassment prevention. In one decision, Gaines v. Bellino, the New Jersey Supreme Court identified five factors to determine whether an employer has established an effective anti-harassment policy:

1. Does the employer maintain formal policies prohibiting harassment in the workplace?
2. Are there both formal and informal ways to file a complaint? (This is especially important in the fire service, with its command structure.)
3. Is there mandatory anti-harassment training for supervisors? Is training available for all members?
4. Are there mechanisms to check the effectiveness of the policies and complaint procedures?
5. Is there an unequivocal commitment from the highest levels that harassment will not be tolerated, and is that commitment demonstrated through management's actions?

This test is similar to, but more stringent than, the principles laid out in the U.S. Supreme Court's 1998 decisions. While the Supreme Court decisions created incentives for management to implement and enforce a strong anti-harassment policy, this New Jersey decision makes it mandatory.

In the second case, Caggiano v. Fontoura, an intermediate court ruled that an employer could be held liable for sexual harassment merely because an employee who had previously been accused of sexual harassment was allowed to stay on the job. The court said the accused harasser's mere presence may be enough to justify a claim of a hostile environment, even if there is no claim of a specific harassing action.

According to New Jersey attorney Jill Jachera, this decision "is at odds with the well-settled proposition that an employer is not required to terminate an alleged harasser; rather, the employer's obligation is to take reasonable steps to ensure that the harassment does not occur again." Unless the decision is overturned on appeal, it creates a significant legal uncertainty.

Sexual harassment is an area of the law in which prevention is especially important. Both leadership and the rank and file, career and volunteer, need to make this a priority (volunteers can file harassment claims too). Fire departments need to know the law in their states regarding what constitutes a "hostile environment" and what preventative actions the courts expect. And this needs to be effectively communicated throughout the organization.

I know that this is the type of training that many in the fire service dislike. And, indeed, it often is done poorly, amounting to little more than politically correct platitudes, vague threats and an explanation of how to file a complaint. But an effective anti-sexual harassment program must address the legal realities and the realities of life in the fire service.

As Jachera has noted, the New Jersey decisions have raised the stakes in that state. The decisions go beyond the requirements established by the U.S. Supreme Court. Other states may or may not follow the New Jersey standards, but these decisions should alert departments nationwide of the need to make sure that they have effective sexual harassment policies, both in reality and perception. Further, individual firefighters must make sure their actions and attitudes are not creating a hostile environment for their brothers and sisters in the fire service.