June/July 2004 Issue Number 60

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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Women Chief Officers Conference November 11-14, 2004, Wyndham Hotel, San Diego. For more information, go to www.womenfireofficers.org

Stopping Racial Profiling

Last year, racial profiling was made a crime in the State of New Jersey, punishable by up to five years in prison. Now the state is also putting money toward a more proactive approach; training all of its police officers on what racial profiling is and how and why it should not be done.

The State of New Jersey has been under federal oversight since December 1999 after an investigation of a police shooting showed that racial profiling had led to the wounding of three unarmed men. This incident was among many others which resulted in members of the public accusing police of using race as a determining factor in law enforcement decisions. Ultimately, state authorities admitted that state troopers did engage in racial profiling.

The new training program uses video clips which depict police officers doing routine law enforcement work in diverse communities. The re-enactments are all based on existing case law. After each video segment, officers are asked if it showed good police work, questionable behavior or outright racial profiling. Discussion of each scenario is then facilitated. The goal of the training is to force officers to confront their own stereotypes and habits, and to understand the perceptions of others.

Does racial profiling exist in the fire service? On first glance, it may appear that firefighters are in less of a position to make critical decisions based on race. In many cases, firefighters are concerned more with outcomes rather than people: the fire in the building, the smashed car. But firefighters are also in a position to make value judgements based on appearance; not just race, but also such things as socioeconomic status, age, or personal style. Have you ever seen a paramedic downplay a patient's complaints because "we know Bill; he's homeless and a drunk and always complaining." Or how many times have you witnessed a firefighter yelling at an older person who may have perfectly good hearing? Do members of your department call wealthy people Mr. or Mrs. while less advantaged people are called by their first names?

These examples may not be racial profiling, but they reflect stereotyping that could lead to a variable or diminished standard of care. The danger of stereotypes is that there is often a grain of truth to them: some old people are deaf, some homeless people do complain a lot. Some blacks do commit crimes. But as soon as you cross over from recognizing single examples to forming a rule based on your perceptions, you are in trouble. In New Jersey, this type of profiling is a crime. But no matter where you are, it is wrong.

Source: Associated Press, May 25, 2004

 

On May 17, Massachusetts became the first state to legally sanction gay marriages. The California Supreme Court is currently considering the legality of same sex marriages that were performed last winter in San Francisco. The Arizona Supreme Court has rejected a challenge to the state law which prohibits same sex marriages.

The U.S. Supreme Court recently upheld a disabled man's right to access at a local courthouse in the state of Tennessee. The case, which upheld the Americans with Disabilities Act over states' rights, is considered a victory for those seeking equal access under the ADA.

Putting Sex in Sexual Harassment

Ann Marie Riske was an employee of a supermarket chain for twenty years, most of that time spent as manager of the bakery. In 1997, Ms. Riske received a rose from an anonymous source while at work. This was the beginning of a pattern in which she received flowers, notes and other gifts signed by someone named "Neena." Ms. Riske did not know anyone named Neena and could not determine who was sending the items to her. Some of the notes made comments about her appearance or said that the sender loved her, and Ms. Riske, feeling that someone was stalking her, became increasingly upset. Her health and work were affected, and during the years that these events took place, she saw a psychiatrist for stress, as well as hiring a private detective to try to determine the identity of Neena.

At the same time Ms. Riske was receiving the notes and gifts, she also reported unwelcome attention from her immediate supervisor. She claimed that he followed her around the store, whistled at her in a taunting way, and stared at her when she was working. Ms. Riske reported the supervisor's behavior to store managers and after an investigation, they transferred her to another store. Two days later, Ms. Riske's supervisor, Mr. Katzenberger, admitted that he and some of his friends had been sending the notes and gifts from the fictitious "Neena."

Ms. Riske sued her employer on two main counts: that she had been subjected to "outrageous conduct" and that she had been a victim of hostile environment sexual harassment as a result of Mr. Katzenberger's actions. Ms. Riske had extensive documentation and witnesses to the behavior in question, as well as a confession by Mr. Katzenberger. Yet the 10th Circuit Court of Appeals upheld only her claim of outrageous conduct and threw out the sexual harassment claim. Why? According the judges, there wasn't enough sex in it.

Citing several Supreme Court cases, the 10th Circuit judges stated that a reasonable jury could not find that what was done to Ms. Riske was done "because of her sex." The court only accepted explicitly sexual remarks as applying to the harassment claim. It rejected that the majority of the messages Ms. Riske received were gender-based. Further damaging her case was Ms. Riske's own assertion to the investigator that nothing was inappropriately done to her "of a sexual nature."

In this case, the 10th Circuit Court of Appeals applied a narrow standard to what may be considered harassing behavior. Because Ms. Riske had not been subjected to explicit or implicit sexual proposals or unwanted physical conduct, the court found that harassment had not taken place. Additionally, it applied the "I'm a jerk to everyone" defense in dismissing her claims that Mr. Katzenberger was hostile toward women, in light of testimony that he "treated women pretty coldly, the same as everyone else."

This case illustrates just how difficult it can be to make a sexual harassment claim stick, even in light of admitted outrageous behavior. It also highlights the differences among courts; in 1991, the 9th Circuit Court of Appeals accepted a "reasonable woman" standard for judging harassing behavior, which specifically did include non-sexual stalking-type behaviors. Despite good documentation, the admitted bad acts of a supervisor, and demonstrable harm done, the plaintiff still did not prevail in this case. Is this fair? Fair or not, this case is more the rule than the exception in decisions of this type.

Source: Riske v. King Soopers, 10th Circuit Court of Appeals, 02-1378

© Linda F. Willing, 2004