January/February 2003 Issue Number 43

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.

The First Amendment at Work 

A police officer publicly criticized the New York City Police Department following the fatal shooting of an unarmed immigrant, Amadou Diallo. She was fired, but following a lawsuit, she was reinstated with $327,000 in back pay and damages. A union president in Arkansas publicly criticized his fire department on issues of pay, and was passed over for promotion and subsequently fired. Following a successful lawsuit, he was also reinstated and awarded $350,000. In both cases, judges ruled that the employees' right to voice their opinions, even about department policies or procedures, was protected by the First Amendment. 

The First Amendment right to freedom of speech and expression in the workplace is not absolute. For example, fire departments can require their employees to wear uniforms, a clear violation of absolute freedom of expression, and can discipline or fire workers who refuse to comply. Directly threatening speech is not protected under the First Amendment, and speech or behavior that creates a hostile work environment is prohibited under Title VII of the 1964 Civil Rights Act. The workplace is constantly balancing personal freedoms and professional necessity which may limit those freedoms.  

Some people try to hide behind the First Amendment when attempting to justify unprofessional or even illegal workplace behavior. The fact is that an employer can establish and enforce standards of workplace conduct that are significantly narrower than the Constitution allows for private citizens. 

But an employer cannot unreasonably abridge the protections of the First Amendment, especially if the issue is an individual expressing a political or personal opinion. Each case is different and each court reaches its own conclusions. But two courts in different parts of the country recently came to the same conclusion; blatantly violate the First Amendment, and it could cost you. 

Sources: Associated Press, November 11, 2002
             Arkansas Democrat-Gazette, November 24, 2002 

The minimum cost to replace an employee who leaves the job is 30% of the employee's annual salary. Highly skilled or experienced workers can cost an organization 1.5 times that employee's salary just to bring a new person into the position. Hiring costs for public safety positions which require extensive testing and background checks are particularly high. 

Source: The American Management Association 

Defining Disability 

Is HIV infection a disability under the Americans with Disabilities Act (ADA)? Some courts have said emphatically yes, but a recent decision by the 5th Circuit Court of Appeals says not necessarily. 

The case concerned a man, Albenjamin Blanks, who had worked for Southwest Bell for 20 years. Mr. Blanks was working as a residential customer service representative when he was diagnosed with HIV in 1996. Mr. Blanks was suffering from depression and work-related stress, and his doctor recommended that he change jobs in order to reduce stress. Mr. Blanks and his employer tried to reach agreement about an alternative assignment, but the best the company would offer was a position that paid $100 less per week than his previous job. Mr. Blanks resigned and ultimately sued for discrimination under the ADA. 

Mr. Blanks lost his lawsuit and subsequent appeal, mostly based on how the courts defined disability. The ADA defines disability as "a physical impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment, or being regarded as having such an impairment." Exactly what this definition means has been the source of much legal debate in recent years. 

The courts have wrestled with what defines a "major life activity," and have come to a definition that is increasingly narrow. In January 2002, the Supreme Court determined that a woman who was unable to lift or perform any manual tasks at work due to carpel tunnel syndrome was not impaired in a "major life activity" because she could still perform other major life activities such as taking care of personal hygiene and doing household chores. 

The Supreme Court has said that asymptomatic HIV infection does qualify as a physical impairment and that it substantially limits the major life activity of reproduction. Therefore, an HIV-positive person who shows that he or she has been limited in terms of reproduction because of the infection would be protected under the ADA. 

However, Mr. Blanks was found not to have major life activity limitations, and was therefore not qualified for protection under the ADA. The court cited the decision by Mr. Blanks and his wife not to have any more children after the birth of their daughter in the early 90's. Mr. Blanks was also found not to be substantially limited in his ability to work, because although he could no longer do the job he had previously held, he was still able to do some jobs. 

This case, which only applies to the 5th Circuit, underscores the increasing scrutiny that disability cases are receiving. The ADA was law that was not well understood when it was first written. The ensuing years have sought to clarify the limitations of that law, for better or for worse. 

Sources:  Albenjamin Blanks v. Southwestern Bell Communications, 5th Circuit Court of Appeals, 02-10089 
              Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, U.S. Supreme Court, 00-1089 

© Linda F. Willing, 2003