October/November 2001 Issue Number 28
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.
We hope that you find the information here useful and provocative.
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Strategic Management of Change: November 5-16, 2001. Linda Willing will be co-instructing this class at the National Fire Academy, Emmitsburg, MD.
Women in Firefighting: Walking the Legal Tightrope: October 11-12, 2001. Sponsored by the Cleveland State University law school, this conference will cover topics including recruitment, training, testing, and promotion. Contact email@example.com or call 216-687-3947 for more information.
Women Chief Officers Symposium: November 9-11,2001, Austin, TX. Call 303-841-5768 for more information.
IAFF Human Relations Conference: January 13-15, 2002, New Orleans.
Leadership Training Seminar: March 8-10, 2002, San Diego Bahia Resort. Sponsored by Women in the Fire Service. For more information call 608-233-4879 or email firstname.lastname@example.org.
The tragic events of last month, and the staggering loss of life, particularly among rescue workers, has had a profound effect on the emergency services from the local to the national levels. FEMA has stepped up efforts to prepare for terrorist acts. Local jurisdictions are rethinking their target hazards and emergency response plans. Fire departments, reeling from the losses, are just trying to maintain.
In times like these, good leadership is more critical than ever. It would be a mistake for fire and emergency services departments to focus on technical responses to the events of September 11 at the expense of the human repercussions. Developing effective leaders is the best form of emergency preparedness there is.
It is heartening that the nation is finally awakened to the dedication and the sacrifice made every day by emergency responders. However, this puts an extra burden on these agencies to live up to these high expectations. More than ever, people will notice what firefighters do on a day-to-day basis. Emergency personnel need leadership, training, and support as they meet these high standards.
Clarifying the Family and Medical Leave Act: Recent Cases
On the surface, the FMLA is very simple. If you work full time for a public organization, or one that employs more than 50 people, and you have been there over a year, you are eligible for the up to 12 weeks of leave in a 12 month period. However, interpretive problems have arisen related to the FMLA. Two recent legal decisions have helped to clarify its intent.
The first, Bachelder v. America West Airlines, spoke to how eligibility is determined when someone uses the FMLA in sequential years. Penny Bachelder, an employee of America West, had used her FMLA benefit several times for childbirth and personal medical problems. After using FMLA leave twice within a 12 month period, but in two different calendar years, America West fired Ms. Bachelder, alleging abuse of the FMLA. Ms. Bachelder sued America West, saying that they were inconsistent and unclear as to how eligibility periods were determined, and that was she was unfairly discharged. A recent decision from the 9th Circuit Court of Appeals agreed with Ms. Bachelder.
Employers have a choice of how they determine FMLA eligibility periods. Four methods are available:
The calendar year
Any fixed 12 month "leave year", such as the fiscal year, the employee's anniversary date year, etc.
12 months forward from when the first FMLA leave began
"Rolling" 12 months backward from when leave was used
Ms. Bachelder assumed that she was eligible for leave within any calendar year, a standard she met. Her employer claimed that they were using a method that calculated from her last used leave.
The problem arose because America West had never informed its employees which eligibility system it was using. Given the ambiguity of the circumstances, the court determined that the company had to apply leave in the way most favorable to the employee, which was the method Ms. Bachelder had assumed when she took her leave.
The court also stated that whatever calculation method is used, it must be used consistently for all employees, and workers must be informed before applying for leave which method will be used. Employers wishing to change the leave-year calculation method must give workers 60 days notice. Finally, the court stated that it is the employer's responsibility, not the employee's, to determine when a leave request is likely to be covered by the FMLA, and to notify employees accordingly.
But the employee has responsibilities under FMLA too. Another case, Medley v. Polk Company, clarifies what some of those obligations are. This case dealt with an employee, Vickie Medley, who left work suddenly under FMLA provisions, to assist her father, who had had a heart attack in another state. The propriety of this use of leave was never disputed. However, when Ms. Medley returned from leave, she did not notify her employer about further need for leave under FMLA, nor did she return to work. She also did not provide her employer with documentation of her father's condition. In fact, her father had been released from the hospital and did not require further assistance. Ms. Medley was ultimately fired for having abandoned her job. She sued, saying that she had not been treated fairly under FMLA. The court took the position that her employer had acted fairly and that Ms. Medley had not fulfilled her responsibilities to qualify for FMLA leave. These responsibilities include providing a note from the attending doctor stating the need for family care and the approximate duration of that care.
These two cases highlight some of the continuing questions that exist when dealing with the FMLA. How is leave calculated? Under what conditions may it be taken? Are all employees clear about how leave will be administered? Do employees understand what they must do to meet the requirements of FMLA? Employers who want to use this law for the benefit of their organizations and their employees will make sure these questions are answered before problems and misunderstandings arise.
Source: Bachelder v. America West Airlines, 9th Circuit Court of Appeals, 2001
Medley v. Polk Company, 10th Circuit Court of Appeals, 2001
A Canadian naval commander who used a military computer to surf pornographic web sites has been brought up on charges for "conduct that would prejudice good order and discipline." The commander turned himself in after a subordinate was charged with similar conduct. "I admitted this to ensure I would not be involved in the trial of my subordinate and to clear my conscience," the officer said.
Source: Associated Press, August 16, 2001
Sex Role Stereotyping
If someone is ridiculed or harassed at work because he or she does not meet what others feel is an acceptable sex role stereotype, can this be a form of sexual harassment or discrimination? Several legal decisions indicate that the answer is yes.
The first decision on this topic was Price Waterhouse v. Hopkins, a case that was decided by the United States Supreme Court in 1989. This case concerned a woman who was denied partnership in an accounting firm because she did not match a sex stereotype of the company. Ann Hopkins was described by various partners as "macho", "in need of a course in charm school", " a lady using foul language", and a "tough talking, somewhat masculine, hard nosed manager." Ms. Hopkins was advised that she could improve her partnership chances if she would "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry." A complex ruling supported Ms. Hopkins' claim that this expectation by the company, and job action taken because of it, was a form of sex discrimination.
A recent decision by the 9th Circuit Court of Appeals (Nichols v. Azteca Restaurant Enterprises Inc.) has extended this protection to men who violate traditional sex role stereotypes. In this case, Antonio Sanchez was an effeminate-acting waiter who was relentlessly harassed by certain male co-workers and a supervisor. Mr. Sanchez reported the harassment on several occasions to supervisors, but little action was taken to prevent it in the future, and no disciplinary action was taken against those who perpetrated it in the past. In winning his appeal, Mr.. Sanchez quoted the Price Waterhouse case, claiming that a decision that said that a woman could be discriminated against for being "too masculine" should equally apply to a man who is harassed by co-workers for being "too feminine." The court agreed.
Both these decisions have significant impact for the emergency services. As the workforce diversifies, employees are likely to diverge from what some might feel are traditional sex roles. Aggressive, direct-talking women; sensitive, shy menö these characteristics are extraneous to how well suited someone may be to a career in the emergency services.
Women in the fire service are often in a no-win situation when it comes to sex role stereotypesö if they act too aggressive, they may be harassed for being too manly or accused of being lesbians, but if they act too traditionally feminine, they are considered too "girly" and thus unsuited to work in a traditionally male profession. On the other hand, in the often macho world of firefighting, men are especially pressured not to show any feminine traits, and may be severely ridiculed and ostracized if they do. The cases cited here are creating a record that says someone should be judged by their work and their character, not how well they meet traditional sex role expectations.
Sources: Price Waterhouse v. Hopkins, 490 U.S. 280 (1989)
Nichols v. Azteca Restaurant Enterprises Inc. 9th Circuit Court of Appeals, 99-35579, Filed July 16, 2001.