September/October 2003 Issue Number 51
 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.
Let us know what you think! If you'd like to subscribe to the newsletter,
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IAFF
Human Relations Conference January 25-28, 2004, Santa Monica,
CA. Linda Willing will be presenting a workshop at this conference.
For more information, go to www.iaff.org.
Leadership
Training Seminar
, March 25-28, 2004, Miami, Florida. Go to www.wfsi.org
for more information.
Does Diversity Still Matter?
October
7 th is in the news as the day that the California governor's recall
election is scheduled to take place. But far fewer people realize
that another important vote takes place that same day; a decision
by California residents on whether to approve the ballot issue known
as the Racial Privacy Initiative.
This
initiative, proposed by Ward Connerly (who also spearheaded California's
Proposition 209) would make it illegal for government entities to
collect, compile, or publish data regarding race or ethnicity within
the State of California. Opponents of the measure say that it would
be damaging on many fronts: restricting medical research that would
benefit specific racial or ethnic groups, disallowing the prosecution
of hate crimes based on race or ethnicity, and undermining analysis
of recruitment and retention in jobs and schools among diverse groups.
Proponents of the measure say that it is one more step toward the
goal of creating a truly color-blind society, and that measuring diversity
is a false construct that does more harm than good.
A
color blind society sounds great, but is it the reality? Supreme Court
Justice Sandra Day O'Connor wrote in her University of Michigan affirmative
action decision that it was her hope and expectation that programs
directed at promoting diversity would not be needed 25 years from
now. A lofty goal, but how much progress have we made toward it?
Not
as much as some would hope, it turns out. The latest study on school
desegregation by Harvard University's Civil Rights project shows that
70% of black children attended predominantly minority schools in 1998-99,
up from 66% in 1991-92 and 63% in 1980-81 .The study also found that
minority students were most likely to go to schools with whites in
the south, and that the states with the most segregated schools were
New York, Michigan, Illinois, and California. A recent census report
on housing in the United States found that American housing was still
largely segregated, with the worst segregation in the Northeast and
the Midwest. That report found the most segregated metropolitan area
to be Detroit, followed by Milwaukee, New York, and Chicago.
We
dream of a society that is genuinely inclusive and color blind, but
clearly we are not there yet. There is more work to be done, and it
is hard to know how much harm or good ballot measures such as the
Racial Privacy Initiative will do in the long run.
Sources:
The New York Times, December 22, 2002
Findlaw.com, August 21, 2003
A growing number of people are filing lawsuits against their employers
alleging discrimination based on weight. Many of these cases cite
protection under the ADA, although to date, most courts have not recognized
obesity as a protected disability. Currently, discrimination based
on weight is illegal in Michigan, Washington, San Francisco and Santa
Cruz, CA.
Source:
The New York Times, via HRNext, August 6, 2003
Sexual
Harassment: The Ocheltree Paradox
Lisa
Ocheltree was miserable at work. As the only woman employed by Scollon
Productions, a company which makes costumes for university mascots
and cartoon characters, she was constantly subjected to a work environment
that was full of sexually explicit language and behavior. Male employees
simulated sexual acts with mannequins, directed obscene jokes at Ms.
Ocheltree, forced her to view sexually explicit material, and talked
constantly of sex in the most graphic terms. Ms. Ocheltree tried to
complain about the behavior up through the chain of command, but was
often prevented from doing so by her immediate supervisor. The company
president and vice president refused to talk to her when she asked
to speak to them privately about the matter. There was no formal sexual
harassment policy in place, and no training offered on the subject.
Finally, Ms. Ocheltree became so stressed from work that she left
the job and filed a sexual harassment lawsuit against her employer.
The result of that case highlights interesting paradoxes in how sexual
harassment claims are decided.
Did Ms.
Ocheltree suffer illegal harassment at work? Yes, according to the
4 th Circuit Court of Appeals. The majority ruled that she had met
the four prong requirement for proving illegal harassment had occurred:
that the behavior was unwelcome, that it was based on her sex, that
it was sufficiently severe or pervasive to alter the terms and conditions
of her employment, and that the behavior was attributable to her employer.
Based on this finding, the court awarded Ms. Ocheltree compensatory
damages of $7280. However, the court reversed the previous jury award
of punitive damages against the company (an amount set by the jury
at $400,000, but reduced by federal statute to the limit of $42,720.)
The 4 th Circuit Court of Appeals ruled that Ms. Ocheltree, although
clearly harassed at work, was entitled to no punitive damages whatsoever.
The court's
rationale for disallowing punitive damages highlights a kind of Catch
22 faced by many victims of harassment. For punitive damages to be
applied, an employer must engage in intentional discrimination "with
malice or reckless indifference to the plaintiff's federally protected
rights." The Supreme Court has ruled that malice and indifference
pertain to the employer's knowledge that it may be acting in violation
of federal law, not its awareness that it is engaging in discrimination.
The court ruled that Scollon Productions did not have the knowledge
required to be liable for punitive damages.
This
"head in the sand" defense against punitive damages is clearly
demoralizing for legitimate harassment plaintiffs. The conservative
4 th Circuit Court of Appeals (with the nationally lowest rate for
finding in favor of harassment plaintiffs) upheld Lisa Ocheltree's
claim of illegal sexual harassment. But it accepted that the company
was not liable for punitive damages because it "didn't know"
it was engaging in illegal actions by letting the harassing behavior
continue.
It seems
clear that Scollon Productions didn't know the behavior was illegal
because it didn't want to know. It resisted providing an anti- harassment
policy in times when such policies are standard for all employers.
It did not provide any training for its employees. A supervisor actively
enabled the behavior. The company leaders refused to listen to any
complaint, despite their supposed "open door" policy. If
this doesn't amount to negligence and liability, what does?
This
case, which only applies to the 4 th Circuit, highlights the continuing
struggle that harassment victims face in trying to find justice and
make constructive change. But perhaps Lisa Ocheltree should take solace
in small victories; two of the judges who heard her case did not believe
that she had been harassed at all.
Source:
Lisa L. Ocheltree v. Scollon Productions Inc, 4 th Circuit Court of
Appeals, 01-1648
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