By John K. Murphy
(Click HERE to read Part 1)
Lieutenant, Captain, or Chief Officer
It appears that the harassment of women firefighters rises to the top of the organizations. Kathy Petty, a former Topeka (KS) Fire Department (TFD) deputy fire chief, is seeking more than $1.3 million in a federal discrimination lawsuit filed against the city and Local 83 of the International Association of Fire Fighters (IAFF). The suit alleges that the city committed gender discrimination and retaliation, while Local 83 supported actions the city took to terminate Petty and hire less qualified men for vacant fire department jobs she subsequently sought. The suit seeks damages for lost wages and benefits, future lost wages and benefits, mental anguish, costs, and legal fees. She was hired as one of the TFD’s first four female firefighters in 1985. She then became its first female training officer in 1995, its first female member of management in January 2004, and its first female deputy chief in September 2004.
Petty subsequently became a target of public criticism from IAFF Local 83, which represents rank-and-file TFD firefighters in collective bargaining. The city later eliminated her job along with several other positions in what it said was a budget-driven work force reduction. According to her lawsuit petition, she was involuntarily moved in September 2009 from her deputy chief’s job to a management analyst’s position within the city manager‘s office that carried substantially less authority, with her pretransfer duties being reassigned to a male employee. She was terminated in February 2010 with a city separation letter providing the reason as “layoff/budget.”
Because she had been laid off, she was entitled under the city personnel code to have her name entered on a reemployment eligibility list and to be given first consideration when a vacancy occurred in the same or similar position to the one she last held. She applied for openings for deputy fire chief in October 2010, training officer in July 2011. Each time, the city didn’t interview her and hired a less experienced man.
Her lawsuit petition contends the city’s actions “were motivated by the city’s and Local 83’s preference for male employees in the TFD.” It says, “The city only considered and Local 83 only supported current TFD employees because that would ensure that a male would be hired and that Petty would not be rehired. She initially filed a claim seeking $1.3 million dollar with the city, which was rejected by the City Council. She then filed her lawsuit in a federal court; the first four counts of the six-count lawsuit contend the city and Local 83 violated Title VII of the Civil Rights Act of 1964 and the Kansas Act Against Discrimination. The fifth count accuses Local 83 of a separate Kansas Act Against Discrimination violation, while the sixth accuses the city of violating Section 1983 of U.S. employment discrimination law. The petition contends Local 83 officials “dominated and controlled” the city’s management in decisions regarding fire department personnel, including sending the city manager and fire department employees emails listing employees who would be allowed to apply for promotions and to fill vacancies. Only male employees were named in the emails, the petition said.
What Are the Common Themes?
The aggrieved are most often always women; they have been harassed, sexually harassed, discriminated and retaliated against in many ways, and some even assaulted and raped. They file a lawsuit against the department, the harassing individuals, and the fire chief and they almost always win large judgments; the law most often favors the victims. It appears the offending department officers and staff condone this behavior, as the claims indicate the harassers are firefighters and fire officers and, in spite of articulating their complaints to the senior management and filing written complaints, the departments minimally discipline the harassers or look the other way, leading to the charge of complicit behavior by the chief of the department.
What is the Law?
Sexual harassment can occur in one of several ways, which follow:
Quid Pro Quo harassment. This can constitute a one-time occurrence or involve repeated behavior requiring a person to tolerate some form of sexual harassment to get or keep a job, get a raise or promotion, or to receive some other benefit. This harassment can come from a prospective employer, a current employer, a manager or supervisor, or a coworker. The sex and sexual orientation of your harasser does not matter.
When looking at classic sexual harassment, we tend to think of a superior threatening an employee with negative repercussions if the employee doesn’t provide sexual favors with variations on that theme. The repercussions and even the demands may not be directly stated. What defines the harassment ultimately is that the employee is required to endure harassing behavior to keep her job or job benefits or avoid other negative consequences at work. Examples may include the following:
- The offender makes direct demands for sexual favors while suggesting it is in the employee’s best interest to comply.
- The offender asks to meet an employee outside of work, making romantic overtures during the meeting, and then discussing the job security the employee would enjoy by being in a relationship with the manager.
- The offender places a hand on an employee’s knee during a one-on-one meeting and suggesting the employee’s performance reviews would go better if the employee were “friendlier.”
- The offender demotes an employee who rebuked the offender’s sexual innuendos at a company party.
Hostile work environment. This involves repeated behavior that is abusive or offensive or interferes or alters the victims’ ability to perform their jobs. Employers that foster or allow these conditions to continue can be found liable for the conduct of the offending employees.
Although not as easily recognizable as quid pro quo harassment, hostile work environment harassment casts a much larger net and encompasses many more forms of misconduct.
This type of harassment is marked by the creation of a work environment that is abusive, hostile, or intimidating. To identify a hostile work environment, the harassment must be severe, pervasive, and reasonably offensive. Examples include the following:
- An offending coworker or officer making frequent sexual remarks toward an employee.
- An offending coworker or officer repeatedly touching an employee in an unwelcome manner.
- An employee regularly receiving sexually explicit e-mails from the offending coworker or officer.
- An offending coworker or officer making catcalls every time an employee walks by.
- An offending coworker or officer constantly inquiring about an employee’s sex life or sexual history.
- An offending coworker or officer pestering an employee for a date or sexual encounter.
Rape and assault. This crime is punishable by jail time, loss of job, a monetary fine, and the possibility of having to register as a sexual offender in your state and other states of relocation.
Other forms of harassment. It’s important to remember that sexual harassment is just one type of illegal harassment. For harassment to be considered unlawful, it must be based on a protected characteristic. These characteristics have been determined by employment law at the state and federal level. The full list of federally protected characteristics include age (40 years or older), color, genetic information, sex, disability, national origin, race, religion (or lack thereof), pregnancy, and veteran status. State laws often add protections for marital status and sexual orientation, among others.
Comprehensive workplace harassment training should touch on all protected characteristics of your firefighters and employees.
Preventing harassment of all types within an organization requires a focus on training, awareness, and effective processes to handle complaints, and should include the following:
- Policy—Have one and enforce it.
- Training—Best practice recommends regular training for all employees on preventing workplace harassment and discrimination. Conducting training every two years is a good standard; in some states this is the law for supervisors. In years when full training is not being provided, refresher training is recommended to keep information fresh in employees’ minds.
- Awareness—In addition to training, organizations must foster awareness of harassment through other means such as posters, videos, and brochures. These materials should help employees identify workplace harassment as well as inform employees who they should contact to report or discuss harassment allegations. Typically, this is a supervisor, the human resources department, or the organization’s ethics and compliance hotline.
- Process for handling complaints—Organizations should ensure they have clear and efficient processes in place for handling harassment complaints. Every organization should establish and promote the appropriate channels for reporting allegations (i.e., supervisors, HR, whistleblower hotline), and the procedures for investigating and resolving complaints should be consistent across all channels. How such investigations are conducted, what corrective actions may take place, what kind of relief victims may receive, what degree of confidentiality complainants can expect, and how retaliation will be prevented and addressed are all aspects of the process that every organization should detail in its policies, embrace consistently in its actions, and share fully with its employees.
- Chief officers must get out into the fire stations to see what is going on—You cannot lead from behind a desk; it is imperative that the chief or his assistants are out visiting on a regular basis. Ask the tough questions to your firefighters about harassment or sexual harassment. Women are not the only victims but are most often the victims of harassment.
Finally, the Most Novel Case of Retaliation
A San Jose (CA) Fire Department (SJFD) female firefighter’s nine-year-old visited his mom’s station. Apparently while using the men’s room, he found a hardcore pornographic magazine. Unbeknownst to his firefighting mother, the boy took the magazine home, where it was later discovered under his pillow. When his mom confronted the boy about the magazine, he confessed. On returning to work, she discovered some 60 other pornographic magazines, prompting her to complain to the station captain. The resulting investigation led to the female firefighter-mom being “shunned and taunted” by fellow firefighters. After months of such treatment, the firefighter sued the city for sexual harassment and eventually settled for $200,000.
Allegations of sexual harassment based on retaliation for filing a complaint are not rare. In fact many (if not most) sexual harassment cases include allegations of retaliation to address harassment that occurred after a victim complains about being harassed. What is unusual in this case (besides the involvement of a child) is that it appears the victim was not harassed prior to her complaining about the magazines. It was only after she complained that the harassing behavior began.
Harassment is harassment. It is not necessary that a person has to be the victim of ongoing harassment prior to complaining to trigger the antiretaliation provisions of discrimination laws. There are cases where men have successfully alleged retaliation-based sexual harassment because they were harassed for supporting women firefighters who were being harassed. See McMenemy v. Rochester, 241 F.3d 279.
We must treat all firefighters as professionals. Women firefighters do not need to be subject to boorish, egregious, sexist, and discriminatory behavior by fellow firefighters. Yes, we can joke around and have fun, but the line is drawn when the target of your “jokes” says to stop, you need to stop. Remember, we all have mothers and some of us have daughters and you would not want your family treated in this fashion.
We are in the fire service for a number of reasons, but one should not expect to be harassed for years before litigating her claims and, most often, leaving her chosen profession.
When does this conduct end and what can you do to prevent the continual boorish, sexist, misogynistic, immature, hostile, and intimidating behavior against women firefighters?
IT starts and ends with you; it is time to treat women firefighters as professionals and not as sexual objects or as targets of your bias and intolerance.
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.
MORE JOHN K. MURPHY