Practical Support for the Changing World at Work 
Linda F. Willing
P.O. Box 148
Grand Lake, CO
80447
970-627-3732
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Consider This... December 2001/January 2002 Issue Number 30

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 areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

We hope that you find the information here useful and provocative.
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Upcoming Events

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 info@wfsi.org.

 

In the News

Not So Free Speech

Free speech has never been completely free. You can't yell "fire" in a crowded theater, nor can you make a credible threat against another person. But even beyond criminal restrictions, the right to freedom of speech has limits.

The right to freedom of speech and expression has always been limited when one is at work. Consider the fact that firefighters are required to wear uniforms. This clearly limits freedom of expression, yet is completely legal as a condition of employment.

Employers cannot unreasonably limit freedom of expression, but the limits of reason are not written in stone. Consider recent cases from colleges and universities, usually the strongest defenders of free speech rights.

  • A Michigan professor was suspended for using obscenities in class. The professor, who has taught at the institution since 1967, was suspended for a semester after students complained that they felt degraded and harassed by his use of language. The 6th Circuit Court of Appeals ruled that the college's right to protect its students against a hostile learning environment outweighed the professor's right to free speech.
  • A New Mexico professor faces disciplinary action and potential dismissal after he made a distasteful joke related to the events of September 11th.
  • A California professor was suspended and barred from campus after some students complained that they felt his general comments about Middle Eastern politics were directed at them personally.

In this country, we have always valued and defended our first amendment right to free speech and expression. But our employers have always had the ability to abridge these rights to some degree. In times of crisis and national insecurity, these rights are likely to become even more fragile.

Sources: New York Times, November 25, 2001 Associated Press, October 11, 2001

News Brief

The Associated Press reported last summer that although there are increasing numbers of minorities and women in federal government positions, only a small percentage of these workers go on to attain promotions. In particular, representation drops dramatically - sometimes by half - at mid-management levels.

Source: The Associated Press, July, 17, 2001.

Sexual Harassment Update

Narrowing the Scope of Sexual Harassment

Madeline Brown, a postal worker in New York, was subjected to repeated acts of workplace harassment by co-workers. Other postal employees, led by a man who had been her opponent for a union position, spread rumors that she and a married co-worker were having an affair. Obscene cartoons which mocked her weight and depicted her engaged in sexual acts were posted in the workplace. Graffiti about Ms. Brown's sex life was posted in a men's restroom at work. Ms. Brown complained about the behavior to her supervisors, and ultimately filed a sexual harassment complaint against her employer for hostile environment harassment under Title VII.

When the case went to court, the defendant, the U.S. Postal Service, was granted summary judgment and thus cleared of all liability in Ms. Brown's claim. On appeal to the Second District Court of Appeals, Ms. Brown lost again.

How could this be? Clearly Ms. Brown had been harassed at work - the courts did not dispute this fact. But whether this harassment was actionable as sexual harassment - that was where the court disagreed with Ms. Brown.

On its surface, the acts against Ms. Brown clearly fit the definition of sexual harassment as "other verbal or physical conduct of a sexual nature... [that] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." How then did the court justify its decision?

The Second Circuit cited two main reasons why the harassment experienced by Ms. Brown did not meet its standard as sexual harassment. First, the harassment was similarly, if not increasingly, directed at a man in the workplace as well, her purported lover. Second, Ms. Brown herself had insisted early in the complaint process that the harassment was directed at her because of her union affiliation and an ugly recent union election, not because she was a woman. The first reason buys into the idea of "equal opportunity harassment," the second addresses the fact that sexual harassment is ultimately a form of gender discrimination, not just crude or unprofessional behavior in the workplace. The case was further complicated by the fact that Ms. Brown was suing her employer for the actions of peers, not supervisors.

In its decision, the Second Circuit said that "an environment which is equally harsh for both men and women...does not constitute a hostile working environment under the civil rights statutes." However, most of the weight of its decision seemed to rest on the fact that Ms. Brown herself had repeatedly denied that the harassment was about anything other than personal animosity related to bad blood from the union election.

Whether you agree with this decision or not (and it applies only to the Second Circuit), the case is telling in how narrowly some courts are inclined to define sexual harassment under the law. Sexually explicit pictures and rumors were not enough for this panel of judges because they found that "there is overwhelming evidence that the hostility toward Brown was grounded in workplace dynamics unrelated to her sex and that even these pictures did not reflect an attack on Brown as a woman." How could sexually explicit attacks not reflect on Ms. Brown "as a woman"? The court's main justification came from Ms. Brown herself who had clearly expressed "that the harassment was fundamentally the product of a workplace dispute stemming from the union election, and not from her being a woman."

Two important lessons emerge from this case. First, the scope of sexual harassment law is being narrowed in the courts. Second, anyone who has been sexually harassed needs to tell it like it is from the beginning. If someone states that s/he has been harassed for reasons other than sex, it will be very difficult to change that perception later in court.

Source: Brown v. Henderson, U.S. 2nd Circuit Court of Appeals

© Linda F. Willing, 2001

 

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