By John K. Murphy
The primary point of equal employment opportunity (EEO) training is to teach firefighters, fire officers, fire chiefs, and staff about workplace discrimination so they may subsequently avoid conduct that harasses, discriminates, or causes a hostile Workplace either intentionally or inadvertently. By implementing EEO training first as a preventative measure, your fire department will have a better chance of avoiding and defending against claims of discrimination, harassment, and retaliation.
When faced with discrimination litigation, one of the best defenses is to have already provided EEO training to your firefighters and staff, as the Equal Employment Opportunity Commission (EEOC) routinely includes an EEO training requirement in its discrimination lawsuit settlements. Smart fire department employers will implement EEO preventative training rather than wait until the fire department is taken to court on a discrimination charge and is forced to implement remedial EEO training.
In 1998, the U.S. Supreme Court decisions provided a big incentive for employers that include EEO training, including fire departments) when it ruled on Ellerth v. Burlington Industries,123 F.3d 490,524 U.S. 742and Faragher v. City of Boca Raton, 111 F. 3d 1530, which provided employers with an affirmative defense for supervisory sexual harassment that did not involve a tangible employment action. In subsequent rulings, the EEOC extended the affirmative defense of training and education to other forms of harassment. Your legal advisors will want to make sure that part of any defense strategy is to provide this EEO training as a strong demonstration that the employer exercised reasonable care to prevent and correct harassment. Implementing EEO training, while not explicitly required by the Supreme Court, has long been considered one of the main ways employers can show this preventative action. On the flip side, an employee’s lawyer may use failure to conduct EEO training to demonstrate that an employer did not take adequate antiharassment steps.
Training on EEO is not dependent on the size of the organization. In a recent disability discrimination case involving a small business with only 20-25 employees, the EEOC commented: “Any business with that size workforce needs to make sure that … they provide thorough, comprehensive anti-discrimination training to its managers and employees on a regular basis.”
Fire departments should especially provide Supervisor Level EEO Training to all their employees who supervise firefighters and other staff to ensure that they understand their rights and responsibilities under the law and how to prevent violation of those rights, especially during the probationary period. Fire departments should take special care to make sure that the organization’s fire officers and fire chief’s receive annual EEO training, as they may be your organization's greatest legal liability. In fact, before being allowed to assume supervisory responsibilities, fire officers should be trained on at least the following:
- The department policy preventing harassment, discrimination, and a hostile workplace.
- Who constitutes protected groups under federal and state law.
- The types of conduct and employment practices and decisions that violate the law and your policies.
- How to report violations and maintain confidentiality of those reports.
- What fire officers and firefighters should do when they learn of potential violations.
- What is the organization’s prohibition against retaliation against complainants?
Violations of EEO policies are expensive for fire departments. Prevention goes a long way through the creation of a robust policy, training to the policy’s standards, and enforcement of that policy. Too many times, fire chiefs are asleep at the wheel on discrimination claims, and the results often are termination or resignation of the fire chief, demotions of fire officers, and generous settlements to the claimant firefighters and their attorneys. All of these outcomes can be avoided with proactive measures on the part of the fire departments.
Source: AHI’s Employment Law Today (8/10/2010)
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service and is a practicing attorney and a speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering.