By Dominick J. Swinhart
Is it possible to take a firehouse prank too far? In December of 2005, Los Angeles firefighter Tennie Pierce was the subject of a practical joke when his fellow shift members put dog food in his spaghetti. His friends claimed it was simply good-natured fun due to Pierce’s nickname, “Big Dog.” Pierce was not amused, however, and filed a complaint with the department. Following the complaint, Pierce alleges he was subjected to verbal slurs and insults, with some firefighters “barking like a dog” when he approached. Pierce went on to file a lawsuit against the City of Los Angeles, alleging racial discrimination and harassment (Pierce is an African-American). The city council offered Pierce $2.7 million to settle the case. Los Angeles Mayor Antonio Villaraigosa vetoed the settlement offer, and the case is expected to go to trial in March of 2007.
The Pierce case has sparked controversy throughout the fire service, news outlets, and Internet blogs. Fuel was added to the fire when allegations emerged that Pierce initially laughed at the joke and that he had participated in many practical jokes himself over his twenty-year career. Reactions to the Pierce case included comments such as, “It was just a harmless prank,” and “People who can’t take a joke need to leave the fire service; it’s part of our tradition.”
Was the Tennie Pierce case simply a “harmless joke?” It obviously depends on your viewpoint. Consider some recently publicized pranks that have led to complaints and/or lawsuits:
- A Coral Gables, Florida firefighter was awarded $10,000 after she claimed her male colleagues handcuffed her in a hazing ritual.
- An African-American New York firefighter claims that someone placed a hangman’s noose on his turnout gear.
- A Southwest Airlines employee filed a lawsuit after she was handcuffed and led away in front of her coworkers and customers by police officers pretending to arrest her. The incident was planned by her supervisor and was ostensibly to celebrate her passing probation.
- Three African-American firefighters in Florida claim they found hangman’s nooses next to their gear and that they were taunted by white firefighters.
Whether a joke is “harmless” or not is solely in the eye of the person who receives it, not the person who administers it. To better understand where the Pierce case leaves us as firefighters and chief officers, we need to take a fresh look at the rules and laws pertaining to harassment, hazing, and retaliation. It is also necessary to reexamine our policies and procedures, and to know how to recognize when the “tradition” of firehouse practical jokes has been taken too far.
Hazing and harassment
Before we continue, let’s revisit some basic definitions of harassment and hazing.
Harassment is a term that is often broken down into sexual and racial. The U.S.Code Title 18 Subsection 1514(c) defines harassment as “a course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose.” Racial harassment is often defined as “any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic origin and that: involves a stated or implicit threat to the victim’s employment status, has the purpose or result of interfering with an individual’s work performance and/or creates an intimidating or offensive work environment.” Tennie Pierce’s attorney claims that African-Americans were traditionally referred to as “animals and dogs.” This is the basis of his racial discrimination claim. Whether Pierce is successful in applying race to his situation will have to wait for a jury to decide.
Hazing is a term that originated in the college and university Greek system, but has since been recognized to exist in other organizations as well. Many fire departments conduct various forms of hazing when probationary firefighters become permanent employees. While most states have laws that prohibit hazing, some may only protect high school or college students. The University of Washington has a policy, echoed in one form or another by many institutions and state laws, that defines hazing as the following:
“Any willful act or practice by a member or associate member, directed against a member or associate member, which, with or without intent, is likely to: cause bodily harm or danger, offensive punishment, or disturbing pain, compromise the person’s dignity; cause embarrassment or shame in public; cause the person to be the object of malicious amusement or ridicule; cause psychological harm or substantial emotional strain; and impair academic efforts.”
The state of New Hampshire takes this a step further in their law by noting that, “The implied or express consent of any person toward whom an act of hazing is directed shall not be a defense in any action brought under this section.” It is important to remember that courts have held that “going along with” or not expressing immediate displeasure with acts of harassment or hazing does not necessarily mean that they were invited. This relates directly to the allegation in the Tennie Pierce case that he initially laughed at the dog food joke
Observers of the Tennie Pierce case might wonder if it would have ever gone to trial if he hadn’t been subjected to the “slurs” and “taunts” that he alleges occurred after he filed a complaint. The courts have defined retaliation as an “unlawful practice of an employer whereby the employer discriminates against the employee for participating in the enforcement of a statute or a right.” (Sovereign, 38) The allegation of retaliation in complaints such as Pierce’s will almost inevitably lead to lawsuits.
It would be unrealistic as well as undesirable to write a policy that banned all forms of practical jokes or pranks. Not only would it be exceedingly difficult to define a “prank” for a policy manual, but also a department that did would assume increased liability if any pranks were allowed to continue after such a policy was enacted. It could also be argued that such extreme measures would negatively impact department morale. Joking around with our coworkers is a stress reliever. Who wants to work in an environment so strict that you can’t unwind a little bit? The key to avoiding lawsuits such as that occurred in the Pierce case is to know the warning signs that jokes are getting out of control, and to have proper policies in place to address complaints and the fear of retaliation.
Supervisors should not be involved in practical jokes or horseplay. It sets a bad example for other employees and can negatively impact their ability to manage their personnel. In addition, as the Pierce case showed, never assume that someone is going to have the same sense of humor as you. Some people will never appreciate jokes being made at their expense. How can the supervisor know when jokes have gone or are about to go too far? Keep an eye out for the five following warning signs:
- Any prank that compromises safety and risks injuring someone
- When employees begin escalating pranks between one another
- When victims of pranks exhibit brooding, angry, or hostile reactions
- When any joke or prank is related to an employee’s protected status (i.e.sex, race, religion, disability)
- When the only intention of a joke appears to be to humiliate or embarrass an employee, rather than to share a laugh
There are certain pranks that should never be tolerated. These include pranks that compromise personal protective equipment (turnouts and SCBAs), as well as apparatus or any equipment contained on apparatus.
Evaluating your harassment policies
Having appropriate department policies in place is critical to decreasing the chance of a lawsuit. These policies should express zero tolerance for harassment and outline a complaint process for employees who feel they’ve been harassed. Department policies must also outline a zero tolerance for retaliation by managers and coworkers should an employee file a complaint. Additionally, policies should be in place that dictate what an employee should do if they feel they are the target of retaliation. This means that if someone files a complaint, such as the one that was filed in the Pierce case, all joking or references to the incident immediately come to a stop. While this may sound extreme, your agency simply cannot afford any display that could remotely be construed as retaliation.
Remember that it is against federal law to discriminate against any employee based on race, color, religion, national origin, sex, pregnancy, age, disability, military status, union activity, and other concerted activity (page 25 of Workplace Law book). Make sure you are familiar with your own state laws, which may also restrict discrimination based on things like sexual orientation or marital status. An agency’s anti-harassment policy, at the bare minimum, should state the following:
This agency has a zero tolerance policy on harassment of any type. Any discriminatory action or harassment of one employee against another because of race, age, religion, sex, or national origin, that may interfere with working conditions or job opportunities, is a violation of this agency’s policy. Employees found to be responsible for harassment of any type will be subject to severe discipline, up to and including termination. Any employee who is subjected to harassment of any type is required to report such incidents immediately through the appropriate chain of command. In instances where the employee’s immediate supervisor is alleged to have participated in the harassment, the incident may be reported to the next highest person in the chain of command. Complaints of harassment will be kept confidential whenever possible. This agency will not tolerate retaliation of any type against an employee who files a harassment complaint, whether by supervisors or coworkers(The American Bar Association, 25).
Making sure you have a clear and concise anti-harassment policy in place is not enough. Harassment policies should be revisited in formalized training at least once per year. Further training activities should include, but are not limited to:
- Printing the policy and placing in a conspicuous place in every station
- Annual training for supervisors that reiterates the agency’s harassment policies
- Reminding employees that complaints of harassment will be taken seriously, investigated promptly, and that no retaliation will take place
- Periodically bringing up the agency’s harassment policies at officer or administrative meetings (Sovereign, 102)
- Discuss current harassment news and issues to increase awareness
See below for an example of a complete anti-harassment policy.
Whether we like it or not, practical jokes and horseplay are indeed a part of fire department culture and tradition. They provide a method of release from what could otherwise become a crippling stress and pressure of the job. There is much we can learn from the Tennie Pierce case, and increasing awareness and discussing issues of harassment and its definitions is a good starting place. The alternative is an expensive lesson in legal liability that could impact your department, as well as your career.
Dominick J.Swinhart is a 15-year firefighter/paramedic currently working for the Aberdeen Fire Department in Washington state. He is a frequent writer on healthcare, fire service, and management topics. He is currently a student in George Washington University’s bachelor of science in EMS management program.
11.40 Policy Concerning Harassment.
To establish a policy and procedure defining the City’s position on harassment and providing guidance to any employee who believes he or she has been exposed to harassment by another employee of the City.
This policy shall be followed by all City departments and divisions.
It is the policy of the City to provide a work environment for its employees which is harmonious and free from intimidation. Toward this end, the City will not tolerate any form or degree of harassment because of race or ethnic background, gender, including sexual harassment, religion, age, disability, or veteran status. Prompt investigation of harassment complaints shall be undertaken and appropriate disciplinary action, up to and including termination, shall be taken against any employee who is found guilty of any form of harassment.
- Harassment: Intentional effort to denigrate another such as innuendoes, ridicule, slurs, intimidation, jokes, gestures, threats or spreading rumors arising out of dislike, hostility, antagonism, insensitivity, or lack of respect for others because of race or ethnic background, gender, religion, age, disability, or veteran status.
- Sexual Harassment: Sexual harassment is unsolicited, unwelcome sexual conduct or advances, requests for sexual favors or other verbal or physical conduct of a sexual nature that interferes with an employee’s work performance, or that creates an intimidating, hostile, or offensive working environment. Sexual harassment includes conduct that links favorable treatment in employment to sexual favors. It also can involve unwelcome touching or other physical contactand/or verbal conduct, such as requests for sexual favors, repeated use of lewd remarks and “off-color” jokes and posting in the work place of cartoons and pictures of a sexual nature.
E.Procedure for Reporting Harassment.
In any case in which a supervisor is witness to or confronted with a situation of harassment, the supervisor shall immediately notify the offending party that harassment is not appropriate and will not be tolerated. Ultimate disciplinary action will await completion of the reporting procedure.
If an employee believes he or she is a victim of harassment, the following complaint and investigation procedure should be observed.
- Bring the matter to the attention of the immediate, non-involved supervisor. Include the specific allegation, the date(s) the incident occurred, the individuals involved, and any witnesses. A non-involved supervisor is defined as the first person in an employee’s chain of command who is not the object of the complaint of harassment.
- The non-involved supervisor is required to report harassment complaints to his or her department head who, in turn, is required to consult the Human Resources Director and Corporation Counsel. The complaint will be investigated in a timely manner to determine if it has merit. If the complaint is founded, the department head shall take disciplinary action up to and including termination and inform both the complainant and the offender of the results of the investigation and of the nature of the disciplinary action.
- Either party may appeal the decision to the Mayor if it is felt that the findings were incorrect or the disciplinary action inappropriate. If a matter is appealed, the Mayor shall consult with the Human Resources Director and Corporation Counsel concerning review of the department head’s decision. The Mayor will render a decision and inform all parties of the same.
- If either party then objects to the Mayor’s decision, the matter will be referred to a mutually agreeable arbitrator for review and final decision.
- Note: If a department head is the subject in a complaint of harassment, the matter should be referred to the Human Resources Director immediately. The Human Resources Director will consult with the Corporation Counsel and the Mayor will be advised. The Mayor or Mayor’s designee will be responsible for the investigation and determination.
Nothing in this policy shall prevent an employee from informally discussing any problem of harassment or any other discriminatory activity with any supervisor or department head in his or her chain of command. Additionally, the employee may bring the matter to the attention of the Human Resources Director. The Human Resources Director will keep all informal inquiries in confidence.
Employees who report harassment shall not be subjected to any form of retaliation. Any employee responsible for any form of retaliatory conduct shall be subject to disciplinary action up to and including termination.
No one other than those necessarily involved will be contacted during the investigation of a complaint. Records about the complaint and the investigation will be kept in a separate affirmative action file, not in the personnel file.
Sovereign, K, Personnel law, Prentice Hall, (1998).
The American Bar Association, Guide to workplace law, Random House, (2006).