FIRE STATION HORSEPLAY: CAN THIS BE SEXUAL HARASSMENT?

FIRE STATION HORSEPLAY: CAN THIS BE SEXUAL HARASSMENT?

BY THOMAS D. SCHNEID

Can horseplay in the fire station be sexual harassment? Although prohibited in virtually every fire department`s policies and procedures, horseplay of varying degrees happens in most fire stations. In the past, this was often overlooked or even permitted to a degree as a historically normal and harmless activity among firefighters and fire service personnel of the same sex. Activities that could constitute horseplay between fire service personnel of different sexes have usually been strictly regulated due to the potential of violation of sexual harassment laws and regulations. Fire service organizations should be aware of recent developments in the law whereby same-sex sexual harassment (i.e., male harasser and male victim or female harasser and female victim) may be found to be actionable under Title VII of the Civil Rights Act.

Until recently, most courts have found that harassment by the same sex was not actionable under Title VII. For example, in Goluszek v. Smith (697 F. Supp. 1451), the court held that sexually oriented harassment of a male by other males in a male-dominated environment was not actionable based on sex because the harassment did not “treat males as inferior.” Additionally, the Fifth Circuit Court of Appeals last year ruled that same-sex harassment was not actionable even when claims of offensive touching or rape were included. However, several courts and the Fourth Circuit Court of Appeals have found that same-sex homosexual harassment may be actionable as have several courts found that same-sex nonhomosexual harassment is also actionable.

The Equal Employment Opportunity Commission (EEOC) has ruled that same-sex sexual harassment is actionable under its interpretation of Title VII. As set forth in the EEOC Compliance Manual, “The victim does not have to be of the opposite sex from the harasser. Because sexual harassment is a form of gender discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. A victim and the harasser may be the same sex, where, for instance, the sexual harassment is based on the victim`s sex (not on the victim`s sexual preference) and the harasser does not treat employees of the opposite sex the same way.1

At this point in time, several cases addressing same-sex sexual harassment are pending before the Sixth and Seventh Circuit Courts of Appeal, and the courts appear split with regard to this issue. Prudent fire departments may wish to take a proactive approach and evaluate their written and unwritten policies with regard to horseplay on the job and sexual harassment. Given the emerging nature of this facet of the law, identification and prevention can possibly avoid costly litigation and possible embarrassment down the road. n

Endnote

1. Equal Employment Opportunity Commission Compliance Manual.

n THOMAS D. SCHNEID is an associate professor and lawyer with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D. in environmental engineering. He has 14 years of experience as a consultant for general industry.

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