December 2002/January 2003 Issue Number 42

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.

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10th International Conference of Fire Service Women April 23-27, 2003. Denver, CO. Contact info@wfsi.org for more information.

Being Heard 

Frontier Airlines is Denver's second largest carrier, and it is growing fast. It is also one of the few airlines in recent years to show a profit. What is Frontier's secret of success? Operate efficiently, set reasonable expectations, and listen to what the employees have to say.

This last point has allowed Frontier to have unusual success with labor-management relations. "Management's door has always been open for us to sit down and chew the fat, which makes everyone more willing to compromise," commented John Todoverto, president of Frontier's pilots union. Among suggestions from labor groups that have been implemented are a change in scheduling that allows crews to fly together for a month at a time, and the abandonment of double charging customers who make itinerary changes (a practice currently in place among other major airlines.)

Frontier CEO Jeffrey Potter worked his way up in the organization, starting out as an airplane cleaner and ticket agent. As a manager, his approach is clear. Everyone can get a hearing, whether it is a union official or a lone mechanic with a new idea. 

Many leaders have an open door policy. These policies are sometimes referred to cynically by workers. "Sure, you can go in and say what you think. And then they'll do exactly what they want anyway. So what's the point?" What has engendered trust among employees at Frontier is faith that their input will actually be heard and taken seriously, and sometimes even used to launch new management approaches at the company. 

What factors keep employees from effectively being heard, thus promoting an environment where people feel undervalued? In some cases it is simply a lack of skills; employees who don't communicate well, managers who may be poor listeners and fail to understand how critical respectful listening is. It is also possible that current systems do not allow for clear and direct communication. In other instances, the problem runs deeper. Although leaders understand that they are supposed to care about employee input, on a deeper level they really don't. Maybe they lack trust that employee suggestions are being offered with the best interests of the organization in mind. Maybe there is a history of bad faith between groups. Maybe they just disrespect their employees at a core level.

Whatever the reasons why input is not heard and used as appropriate, the ultimate outcome is bad for everyone. People feel undervalued and disengage from the organization. Managers feel overburdened and may develop the habit of micromanaging. Most importantly, the most valuable resource within the organization - the people who work there - are not being used to the fullest. When this happens, everyone loses.

Source: The New York Times, September 29, 2002. 

The EEOC has filed a federal class action lawsuit against Kraft Foods on the basis of same-sex harassment in the workplace. The suit was filed on behalf of male employees who said that their civil rights were violated when they were subjected to a sexually hostile environment and retaliation by a male supervisor at a sales and distribution center in Birmingham, Alabama.

Source: Associated Press, October 25, 2002 

Harassment by Customers 

Are employers liable if customers or members of the public mistreat or harass their employees? Maybe yes, maybe no, according to recent court cases.

Several courts have upheld employer liability for third party (non-employee) harassment if the employer knew or should have known that the harassment was taking place, and did nothing to stop it, and if the employee through his or her job responsibilities is forced to interact with the harasser. However, these standards have evolved exclusively through the courts: Title VII does not specifically address standards of employer liability for third party harassment. The U.S. Supreme Court has established basic rules of liability for harassment by supervisors and co-workers, but has never addressed the issue of third party harassment.

When a supervisor is the harasser, employers are automatically liable, unless they can mount a two-prong affirmative defense (see Archives August-September 1999). If a peer is the harasser, the standard reverts back to the "knew or should have known" standard for employer liability. Some federal courts have applied this latter standard to third party harassment as well. 

But not all courts agree. According to a recent California appellate court decision, employers are not liable for third party harassment even if they knew about it and did nothing.

The case in point involved a bus driver, Raquel Salazar, who drove a route that served mentally handicapped adults. Ms. Salazar experienced severe and persistent harassment at work from some of her customers: physical contact, genital exposure and sexual assault. Ms. Salazar reported the harassment and requested assignment to a different route to avoid the harassment. Previous drivers on the same route had reported similar problems. Ms. Salazar's request for a transfer was denied, and when she quit and subsequently sued for violation of her rights under Title VII, she lost.

How could this happen? Although the California decision may not be consistent with other similar cases, it does underscore the fact that harassment by customers or third parties is currently without clear legal standards.

EEOC guidelines state: "The employer may also be responsible for the acts of non-employees, with respect to sexual harassment in the workplace, where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action." Courts have focused on the word may in this guideline, and one factor that determines potential employer liability is the level of control the employer actually has over the third party behavior. According to this standard, an employer would therefore be more liable for the behavior of a regular visitor to the fire station than it would be for the comments of a bystander at an emergency scene.

While the law is not completely clear about liability for third party harassment, the moral and practical imperative to stop such inappropriate behavior is clear. Supervisors undermine their own credibility when they allow employees to be mistreated by the public, and they also send the message that such behavior may be tolerated in the workplace. Harassment by third parties may or may not be illegal depending on the applicable standards, but it is still wrong, and should be stopped. 

Sources:
Salazar v. Diversified Paratransit Inc. 

Should Employers Be Held Responsible for Sexual Harassment of Employees by Customers if they were Aware of it? by Joanna Grossman on www.findlaw.com 

© Linda F. Willing, 2002