Practical Support for the Changing World at Work 
Linda F. Willing
P.O. Box 148
Grand Lake, CO
80447
970-627-3732
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Consider This...August/September 2006 Issue Number 85

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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Upcoming Events  

Fire-Rescue International September 12-16, 2006, Dallas, TX. Linda Willing will be presenting a pre-conference seminar on September 13 entitled “Leading Diverse Teams.

New York State Women Firefighters Weekend September 21-24, 2006, New York State Academy of Fire Science, Montour Falls, NY. Linda Willing will be presenting a workshop entitled “Command Presence.

12th Annual Conference of Fire Service Women, April 25-29, 2007 Oakland, CA. Go to www.wfsi.org for more information.

In the News

Zero Tolerance

A recent article entitled "Harassment: 8 Elements Your Policy Must Have" stated the following: "Since sexual harassment at work is an issue with many potential 'gray' areas, cast your policy in stark black and white. Employees should feel uneasy about even thinking of their co-workers in sexual terms lest they cross a line that they didn't even know was there." Although I understand the intention of this advice, I think it is misguided.

The intention of the statement above is to create "zero tolerance" for sexual harassment in the workplace. This purpose is admirable and necessary. Sexual harassment, or harassment of any kind, should never be tolerated in the workplace.

The problem with the statement is that it does not define sexual harassment. Instead, it takes the widest possible approach, indicating that even thinking about sex will get you into trouble at work.

Sexual harassment, as a legal concept, is not all-inclusive of anything an employer wishes to attach to it. Federal law clearly states that for harassment to be actionable, it must be unwelcome and it must alter the terms and conditions of employment for the affected person. In nearly every case of hostile environment harassment, this means that a pattern of behavior has been established which has the purpose or effect of "unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." A single off-color joke or a privately held sexual thought do not meet the standard of actionable sexual harassment.

Writing unenforceable policies that scare workers into not even talking to one another is counter-productive to the goal of eliminating workplace harassment. Especially in work environments that require people to live together (such as the fire service), topics of conversation will come up that will not be work related. The goal should not be to create a draconian and unrealistic standard for workplace behavior, but rather to create an organizational culture that is based on inclusion, professionalism, and respect.

Creating such a work environment requires good leadership, effective training, and yes, zero tolerance of real harassment through realistic policies and consistent enforcement and education. Workplace harassment is a serious problem. It must be solved with education and intelligent policies that fully recognize the gray areas and fearlessly address them. Policies that fail to acknowledge the humanity of the people they affect are doomed to fail. And that does no one any good.

Source: HR Daily Advisor, July 24, 2006

News Brief

Seven former Bureau of Land Management employees based in Denver recently settled an age discrimination lawsuit for $2.2. million. The plaintiffs were part of a group of twelve older workers who were forced to either relocate to Washington DC or retire from their jobs. The case focused on the fact that the relocation orders were vague and did not even include job descriptions for the positions allegedly being offered.

Source: The Denver Post, July 31, 2006

Sexual Harassment Update

Light Duty and Pregnancy Discrimination

A federal jury in New York state recently ruled that a police department discriminated against female officers when it denied them access to limited duty assignments during their pregnancies. The Suffolk County Police Department had denied pregnant officers the opportunity to work at the precinct desk and in other non-patrol jobs that would enable them to continue working during much of their pregnancies. In addition, the department failed to provide pregnant officers with bulletproof vests and gun belts that fit, which are necessary to perform patrol duties.

The jury awarded damages to six women, while finding that the department intentionally discriminated against two of the plaintiffs. During the trial, the women reported being forced to use all of their sick and vacation days during their pregnancies, and in some cases going without pay entirely. All of the women were able and willing to work in non-hazardous assignments.

Providing non-hazardous or so-called "light" duty for pregnant employees has been a controversial issue for some organizations. Some feel that if they provide this type of assignment during pregnancy, they will have to guarantee it for any type of off-duty injury. This is a mistaken conclusion, as the U.S. Supreme Court has clearly stated that the Pregnancy Discrimination Act is intended to provide "a floor beneath which benefits may not fall, not a ceiling above which they may not rise." In other words, organizations may legally provide benefits for pregnancy that are not available for other medical conditions, but may not provide fewer benefits for pregnancy than for other types of medical conditions.

The dangers of not providing safe assignments for pregnant workers are considerable. The U.S. Supreme Court has determined that women may continue to work during pregnancy if they are able to perform job functions, regardless of the potential harm to their developing babies. Most women would prefer to minimize any risk to their children by opting into a non-hazardous assignment if available. The women in Suffolk County were in a particularly bad position- not being offered an alternate assignment, but not being given the equipment they needed to perform their regular assignments either.

Organizations of all sizes have come to recognize that accommodating pregnant workers in a safe and useful manner is to the benefit of everyone. Failing to do so not only results in poor productivity and potential harm to a woman and her developing baby, but may also result in legal liability.

Sources: Lochren v. Suffolk County
Automobile Workers v. Johnson Controls, US Supreme Court, No. 89-1215
California Federal Savings and Loan Association v. Guerra US Supreme Court No. 85-494

© Linda F. Willing, 2006

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