December 2003/January 2004 Issue Number 54

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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Consider This...

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.

Maryland Fire Rescue Staff and Command School March 17-24, 2004, Memphis, TN. Linda Willing will be teaching one segment of this seminar. See www.mfri.org for more information.  

Leadership Training Seminar , March 25-28, 2004, Miami, Florida. Go to www.wfsi.org for more information.  

Spinning Dangerously  

How will you react if you do a study of diversity or morale in your workforce, and the results come back much different from what you expected? What if you hire a consultant and they tell you something you really don't want to hear? Will you be tempted to shape or "spin" the results to better reflect what you believe to be true about your organization?  

If you are tempted to change the results, you are not alone. From your perspective, the results may seem unfair, limited in scope, or not indicative of larger truths. As a result, you may decide to delete portions of the study, or suppress it altogether.  

That decision would be a very bad move, regardless of the motivation for the action. Consider the situation the U.S. Justice Department now finds itself in, as an outcome of such desire for spin control. In 2002, the Justice Department commissioned an internal workplace diversity study that was carried out by independent consultants. After receiving the results, the department heavily edited the final report before posting it on the Justice Department website. In total, half of the report's 186 pages were blacked out, deleting most of the consultants' conclusions.  

The conclusions, not all of which were critical of the department, were also less than shocking. Improving diversity would take "extraordinarily strong leadership" among top Justice officials. Minorities are "significantly more likely than whites to cite stereotyping, harassment, and racial tension" in the workplace. Hardly front page news, had the department left the report intact.  

And yet, by editing the report, the Justice Department made real news. In addition to a flood of bad press, there was also a push in Congress for an internal investigation regarding the process.  

There is an important lesson here for all organizations who think that suppressing controversy is better than facing it. If you hire a consultant, commission a study, or do an internal survey, and then you suppress the results for any reason, you are asking for trouble. Nothing you suppress will be half as bad as what people imagine the results to be in lieu of real information. Not only that, but by trying to spin the results, you will damage trust and credibility for any information you disseminate, no matter what the source.  

The best approach? Complete openness. Send everyone a copy of the results, and use them as a positive tool to instigate dialogue and necessary change. Only by taking this first step toward trust can real progress be made.  

Sources: Associated Press, October 31, 2003
New York Times, November 4, 2003   

The Murfreesboro, TN City Council has adopted a good hygiene policy that states "no employee shall have an odor generally offensive to others when reporting to work. An offensive body odor may result from a lack of good hygiene, from an excessive application of a fragrant aftershave or cologne, or from other cause." City officials say that the policy was necessitated by one particular employee who had a problem with hygiene, despite repeated counseling.  

Source: Associated Press, August 26, 2003   

 

The Duty to Report  

Should victims of sexual harassment have the duty to officially report the problem before they can collect monetary damages? A recent decision by the California Supreme Court has clarified expectations in this area and struck a compromise between worker and employer rights.

The case concerned Theresa McGinnis, an employee with the California Department of Health Services (DHS). Ms. McGinnis alleged that her boss physically and verbally harassed her, beginning in early 1996. Although she confided to a friend about the problem at the time, Ms. McGinnis did not officially report the behavior until late in 1997. Following her complaint, an investigation confirmed her allegations and her boss was effectively disciplined. Two lower courts upheld Ms. McGinnis's rights to full monetary damages despite her failure to promptly report the harassment. The California Supreme Court recently reversed those decisions, saying that the failure to report should influence the awarding of monetary damages.  

The case was decided under California's Fair Employment and Housing Act (FEHA), not Title VII of the 1964 Civil Rights Act, an important distinction when liability is being discussed. The FEHA has overall stricter standards for employer liability than are dictated by Title VII. For example, the FEHA requires that employers must have policies regarding sexual harassment, and that they must distribute materials about those policies. Title VII does not have such mandates. The FEHA in the past has also held employers absolutely liable for proven sexual harassment in the workplace, including the payment of any damages sought.  

This recent ruling changes the formula somewhat. The California Supreme Court stated that "a plaintiff's recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation." In other words, although liability for harassment remains absolute, damages to the victim may be offset by the common law doctrine of avoidable consequences- how much of the damage could have been avoided had the victim complained earlier.  

The California decision has generally received good reviews from both workers' groups and employers as a fair compromise. The decision clearly acknowledges that there may be perfectly good reasons why a victim of sexual harassment does not report the problem, and accepts that these reasons may stand as justification for full damages even if reporting is delayed or nonexistent. The decision may also encourage more cases to go to a jury to determine the question of reasonableness. This is good news for victims of harassment. On the other hand, employers that do everything right will be rewarded through diminished financial loss for harassment that may occur despite their best efforts.

This case also highlights the important differences that may exist between state and federal laws regarding workplace harassment. This decision only applies to the State of California, but other states may have similar differences from federal law. It is in everyone's best interests when these fine points of the law are known by all.  

Sources: The Los Angeles Times, November 25, 2003
"The California Supreme Court Holds that Damages Cannot Include Avoidable Consequences of a Victim's Failure to Properly Complain" by Joanna Grossman on findlaw.com

© Linda F. Willing, 2003