Aug./Sept. 1999 Issue Number 2

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the area of sexual harassment, diversity management and conflict resolution will be discussed. Each month a problem will also be presented in the What Would You Do? column, which will ask for your input and comments.

We hope that you find the information here useful and provocative.
Let us know what you think!

Race harassment claims filed with the EEOC and state agencies more than doubled in recent years, having risen from 4910 in 1991 to 9908 last year. Additionally, fewer judges in these cases are opting for pre-trial dismissals. This trend coincides with recent revisions in EEOC guidelines that reflect U.S. Supreme Court decisions regarding sexual harassment. The new EEOC guidelines state that the latest sexual harassment standard now applies to all types of harassment.

The latest decisions in the realm of sexual harassment (see article below) increase employer liability for hostile environment type harassment. Not only must employers provide remedy when such an environment is found to exist, but according to the new law, they must be able to show that they took proactive measures to prevent harassment in the first place.

Although sexual harassment is often talked about as an entirely separate subject from race-based harassment, both types of behavior are violations of the same law: Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on race, color, sex, religion, or ethnicity. Specific guidelines about sexual harassment are a subset of this law.

It was inevitable, therefore, that court rulings affecting one aspect of Title VII would ultimately impact all groups. Yet many employers have designed policies to address sexual harassment without including anything about other types of workplace harassment.

Many employers will be surprised to learn how high the standard can be when faced with a discrimination or harassment claim. For example, the Second U.S. Circuit Court of Appeals in New York recently reinstated a claim by a state prison worker who alleged that she was subjected to repeated racist remarks by coworkers and supervisors. Although the employer had responded to the complaint by firing two employees, warning all other employees in writing about racial insults, apologizing to the plaintiff, and beginning a workplace cultural sensitivity program, the court said that under the new standard, liability could still be assigned if the agency could not prove it made overt efforts to prevent the harassment that occurred.

What can you do to prevent harassment in your workplace? First, know the law, and be aware of recent changes. Develop a good policy that addresses all forms of harassment, and make sure every employee is trained on what the policy says. Do leadership development with supervisors that includes training in discrimination and harassment prevention, conflict resolution, and effective communication. Don't think just because it hasn't happened to you, that it never will.

Most of all, make the commitment from the top down that your organization will be one that is inclusive and respectful to all who work there. This type of genuine commitment will go a long way toward keeping small problems manageable, and keeping you out of court.

Source: Wall Street Journal, July 1, 1999

In a split decision, the California Supreme Court has upheld a lower court ruling that speech that is characterized as harassing is not protected under the First Amendment. The case, which involved a supervisor and his Latino subordinates at the Avis Rental Car Company, will probably be appealed to the U.S. Supreme Court.

Significant changes in sexual harassment law were made last year through decisions of the U.S. Supreme Court. These decisions are now impacting other aspects of discrimination law as well (see article above.)

In an action the New York Times described as "creating a new national policy on sexual harassment virtually overnight," the Supreme Court issued two related decisions regarding sexual harassment on June 26, 1998. The decisions narrowed the legal difference between the two recognized forms of sexual harassment: quid pro quo and hostile environment.

Quid pro quo harassment, a form of sexual extortion by a supervisor whereby a worker must submit or suffer some form of job action (e.g. "Sleep with me, or you'll be fired") has always resulted in absolute liability for employers, whether they knew about the harassment or not. Until last year, hostile environment harassment, behavior that is sexually offensive but not explicitly threatening, had a different standard for liability: the employer was held liable only if the harassment was pervasive and the employer knew or should have known about it, and did nothing.

Things are now significantly different when it comes to hostile environment harassment, by far the more common form. Instead of requiring that employers have actual or constructive knowledge of the harassment in order to be liable ("knew or should have known"), the new law says that employers are equally liable for all forms of sexual harassment in the workplace. This liability can only be mitigated if the employer is able to prove two things: