Dec./Jan. 99/00 Issue Number 6

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 area of sexual harassment, diversity management and conflict resolution will be discussed.

We hope that you find the information here useful and provocative.
Let us know what you think!

Interpersonal Dynamics in Fire Service Organizations, February 7-18, 2000. Emmitsburg, MD. Linda Willing will be co-instructing this class at the National Fire Academy.

Leadership Training Seminar, April 28-30, 2000, Madison, Wisconsin. For more information, contact Women in the Fire Service www.wfsi.org.

In service training for prospective instructors of the new National Fire Academy diversity course, January 10-11, 2000, Emmitsburg, MD.

Discrimination Claims are not Always Successful

The Denver Post recently reported that a federal jury has rejected a race bias claim filed by a dismissed Continental Airlines worker. Although the worker sued the company for discrimination as a result of his firing, and did have at least one witness to back up his allegations, the company was able to prove that the plaintiff had actually been fired for testing positive for alcohol while on duty. They also had documentation that the employee had been warned in the past for drinking on the job. It took the jury less than an hour to find for the company.

This case underscores an important but frequently overlooked fact: many discrimination law suits are not successful. Some are unsuccessful for the wrong reasons, but in this case, it appears the plaintiff failed because, in fact, the company did have justification for his firing.

There is a myth out there that every time a protected class employee sues an employer, that employer is going to lose in court. Frequently employers do lose-- because the employee's case is sound, or because the employer did not take appropriate steps to mitigate and document actual problems as they were occurring. But people don't automatically win lawsuits just because they are African American, or Hispanic, or women. Most judges and juries are committed to an impartial legal process and will consider all the facts before making a decision. If the facts demonstrate that the employer disciplined or fired someone for genuine cause, and not out of discrimination or retaliation, then the decision is likely to be made to favor the employer.

Winning a discrimination case in court requires two things. You have to be right, and you have to be able to prove you are right. On the first count, many employers take a hands-off attitude toward pervasive low level discrimination and harassment within their organizations. They leave such matters up to individual officers or mid-level supervisors. Discrimination law is clear, however, that organizations can be held liable for the actions of their agents, which includes anyone in a supervisory role. If you go to court with the defense that you personally weren't aware of improper workplace behavior, but it can be proven to exist, you will lose, and rightly so.

But what if you have an employee that isn't doing the job, or is violating clear workplace standards, and who also happens to be in an identified protected class with the EEOC? Then the going gets a little trickier. First, make sure that the employee isn't failing to perform his or her job because of harassment or discrimination that you may not be aware of. If in fact the worker has been treated entirely fairly, then you should be able to discipline that person without repercussions IF you have documented proof of the employee's misconduct. This documentation must be objectively gathered, preserved in writing, and able to withstand the test of corroboration.

Even if you meet this standard, it does not mean you are immune to lawsuits. Anyone can pursue a claim with the EEOC (although this agency carries very few discrimination cases to court on its own) or through civil court. You may still end up in court, but history shows that such cases are winnable if you do what you need to do beforehand.

Better yet, stay out of court entirely by preparing those in your workplace to resolve conflicts along the way, and to identify problems when they are still at a stage when they can be solved to everyone's satisfaction. A workplace without lawsuits is entirely possible-- take the steps to make it so within your organization.

Source: The Denver Post, December 4, 1999.

Pentagon Racism Study

A recently released Pentagon study on racism in the military showed that 67-75% of minority members had experienced at least one "offensive encounter" in the previous year. Many of these encounters occurred in the communities surrounding military installations. This was the largest study of its kind done in the military to date.

Harassment by Peers

One of the most potentially far-reaching recent decisions by the Supreme Court relating to sexual harassment got very little press in most business and government publications. This is because the decision was one made in the area of education law, and focused on a case involving children in elementary school.

Yet this case, Aurelia Davis v. Monroe County Board of Education, could eventually impact every employer's liability for sexual harassment, in the same way it has fundamentally changed the way schools must now deal with the issue of harassment. The impact of the case is this: school officials, up to and including the Board of Education, can now be held liable for student-on-student harassment if they know of it and do not take steps to stop it.

School officials, like employers, have always been liable for harassment perpetrated by agents of the organization, such as teachers or other school employees. This is the first case that has extended that liability to the actions of students who are not acting on the behest of the school system.

Educational institutions that receive federal money have been subject to EEOC regulations regarding sexual harassment for some time. The recent extension of liability to cover even the actions of students within the school system sharply divided the high court. The majority opinion pointed out that unchecked harassment impedes a student's equal access to education, while the dissenting minority argued that sexual harassment law was never intended to apply to children. Nonetheless, the decision stands: Schools now have increased liability for student-on-student misconduct in the area of sexual harassment.

Could this standard be applied to employers as well? Although separate case law will have to be brought forward to establish the specific legal precedent, it is not much of a stretch to believe that this law will also become the standard in the workplace. If schools can be held liable for the actions of children, why shouldn't employers be held responsible for the actions of adults who are on the payroll?

Currently, workplace EEO law applies only to organizations and their agents; non-supervisory peer-on-peer harassment, unless enabled by an agent of the organization, is not explicitly covered. Davis v. Monroe County Board of Education may be the signal that this is about to change. The direction of sexual harassment law is manifest: employers and educators are responsible for insuring a harassment-free environment, no matter who is causing the problem.

Some may lament this development in the law. They point to highly publicized accounts of first graders being punished for innocently kissing a classmate. They insist that "boys will be boys" whether it is at school or in the firehouse. But the Supreme Court's decision is clear. It does not concern itself with innocent childish behavior, but rather directed, persistent abuse that results in actual damage done to its victim- the inability to work or learn in the prevailing environment. When such behavior is being tolerated in school, or in the workplace, the "boys will be boys" excuse will no longer fly. School are now being held accountable for this type of behavior if they take no action to stop it, and it is likely that employers soon will be held to similar standards of accountability.

Source: The New York Times Magazine, June 13, 1999.