If we had no sexual harassment we would have no children. A Russian woman suing her boss for molestation lost her case because, according to the judge, sexual harassment is a good thing.
Psychological and Legal Implications of Workplace Harassment John K. Murphy, JD Deputy Fire Chief (Ret) Dr. Beth L. Murphy, PsyD Firefighter/EMT (Ret) Dr. Beth L. Murphy, PsyD Firefighter/EMT (Ret) John K. Murphy, JD Deputy Fire Chief (Ret)
OVERVIEW The potential for harassment, including sexual harassment exists in every workplace. The number of workplace harassment claims filed during recent years has increased dramatically. While some individuals may feel that harassment means only sexual harassment, it has become clear that in today s work environment the term is much broader than that. Harassment has a psychological, legal and monetary component and is a costly proposition for employers. Harassment can result in: low morale, absenteeism, reduced productivity, employee turnover, and damages and litigation costs.
WHATS IN THE NEWS 2006 JACKSONVILLE, Fla. Less than two weeks after an investigation cited sexual harassment, racism and favoritism within the Jacksonville Fire Rescue Department, a department employee disclosed allegations aimed at a high-ranking official. Dec, 2006 - Los Angeles Fire Chief submitted his resignation LA Fire Chief steps down amid controversy stemming from an incident within the LAFD that some call a prank and others a racially motivated harassment. January, 2010 Houston Fire Chief steps down Steps down as Chief of the Houston Fire Department and Assistant Chief was named acting chief.
WHATS IN THE NEWS March, 2010 CHICAGO A top fire official stepped aside from his job to prevent any claims of interference in a city investigation of a sexual harassment allegation that an office worker lodged against him April, 2010 PARK RIDGE, Ill. The fire chief of northwest suburban Park Ridge has resigned his job while facing a claim of sexual harassment
WHATS IN THE NEWS May, 2010 - South Bend firefighter's sexual harassment suit dismissed. Judge says station's bawdy humor, practical jokes didn't constitute hostile work environment. A lawsuit claiming that a male city firefighter was sexually harassed by another male firefighter has been dismissed in federal court. July, 2010 - Nine Va. FFs Fired in Harassment Probe Spotsylvania VA
Extending beyond the Fire Service Sonic Drive-In pays ANOTHER Sex Discrimination Settlement A former employee of a Sonic Drive-In Restaurant in Atlanta Georgia will be receiving a $ 70,000 settlement. The settlement, comes shortly after another sexual harassment case against the Sonic Drive-In franchise that was settled in Grapevine, Texas. Employee at KFC claims Sexual Harassment on the Job A young woman from Galveston has filed a lawsuit against A&S Texas City Food Corporation, which does business as KFC Claims she was sexually harassed on a frequent basis by her assistant manager while working at the fast food restaurant.
WHATS IN THE NEWS EEOC says more MEN are filing Workplace Harassment Claims Women in the United States file the overwhelming majority of sexual harassment claims. The EEOC indicates the percentage of sexual harassment claims filed by men doubled from 8 percent to 16 percent of all claims. Some cases allege harassment by female supervisors or coworkers, most charges involve men harassing other men. Unwelcome romantic advances Men are harassed because they are gay, perceived as being gay or not considered masculine enough for the work setting.
ANSWER THESE QUESTIONS FIVE How do you define Discrimination? How do you define Harassment? Do you define separately or together? What would it look like? What are the legal implications? What are the Psychological implications?
Let s Develop Consensus Definition of Harassment Consensus Definition of Discrimination
CASE STUDY This case study presents a real situation that will test your understanding of workplace harassment, and allow you and share your perceptions and observations with others.
YOU ANALYZE Create response comments Individually Group Report to Remainder of Class
LEGAL FACTORS The Complaint Maher v. City of Fresno 08-CV-00050-OWW-SMS Discrimination Filed the complaint with the California Department of Fair Employment and Housing (DFEH). DFEH issued a right to sue letter
------- Continued Unlawful Sexual Harassment/Sexually Hostile Work Environment California Code 12940 (j), Defendant and its agents/employees sexually harassed Ms. Maher and failed to take corrective action. The harassment was sufficiently pervasive and severe as to alter conditions of employment and to create a hostile or abusive environment for Ms. Maher and to ultimately result in her constructive discharge
------- Continued Discrimination Title IX of the Education amendments of 1972. 20 USC 1681 (a) the fire academy is an educational program receiving federal financial assistance. Her being forced to resign and refusal for reinstatement based in part on the unlawful consideration of her gender, parental status and primary caregiving status in violation of 20 USC 1681 (a).
------- Continued Discrimination Based on her parental status and primary care giving status Defendants discriminatory conduct against Ms. Maher was motivated in part by her parental status and primary care giving status in violation of 23 CFR 106.7
------- Continued Discrimination Forced Ms. Maher to resign from fire academy and refused to reinstate her based at least in part on the unlawful consideration of her gender in violation of public policy under California Government Code 12940 and Article I, Section 8 of the California Constitution.
DAMAGES As a result of the actions of Defendant and their agents and Employees, Ms. Maher has been injured and suffered damages as follows: Lost compensation otherwise entitled Likely to loose compensation to which she would otherwise be entitled in the future Suffered from emotional distress, embarrassment and humiliation
---- Continued As a result of the actions of Defendant and their agents and Employees, Ms. Maher has been injured and suffered damages as follows: Reputation in the firefighting community has been damaged Prospect for future employment and career advancement has been diminished
AWARD After three week trial, the federal court jury found that 39-year-old was a victim of gender discrimination. The jury awarded nearly $2.5 million.
Post Trial Action City Appealed Plaintiff s attorney and a representative of the City s insurance carrier reached the out-of-court settlement over dinner in San Francisco. The City and Maher reached an agreement where an award of $3,350,000.00 will resolve this issue. The City also agreed to dismiss its appeal. The extra money in the amount of $900,000.00 is for legal fees.
PSYCHOLOGICAL IMPACT Individual Co-workers Families Fire Department Community
HARASSMENT DEFINED Under the United States Code Title 18 Subsection 1514(c)1. Harassment is defined as "a course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose".
HARASSMENT DEFINED Psychological Definition Continuum of Microaggression
OVERALL PSYCHOLOGICAL IMPACT Individual Psychological Physical Social Co-Workers Department and Community
CHECKPOINT How does this information presented compare with your understanding so far? What can you add based on your experiences?
BASIS OF HARASSMENT Under Title VII of the Civil Rights Act of 1964 42 U.S.C. subsection 2000(e), Harassment by employers against employees is actionable and a recognized cause of action. Under the Civil Rights Act of 1991Amendments 42 U.S.C. 1981a Provide for damages in employment discrimination cases, and to clarify provisions of the 1964 act relating to disparate impact actions.
TO INCLUDE Race Gender Religion Sex Disability Age Pregnancy
VARIOUS FORMS OF HARASSMENT Verbal Physical Visual Bullying Stalking Cyber stalking Psychological Hazing
SEXUAL HARASSMENT You define it
SEXUAL HARASSMENT DEFINED The EEOC defines sexual harassment as unwelcome verbal or physical conduct of a sexual nature: When submission to such conduct is made a term of condition of employment; When submission to or rejection of such conduct is used as a basis for employment decisions; When such conduct unreasonably interferes with job performance or creates an intimidating, hostile, or offense work environment.
Verbal Harassment
Physical Harassment
Visual Forms of Harassment
HARASSMENT IN MANY OTHER FORMS Bullying Usually physical and psychological harassing behavior perpetrated against an individual, by one or more persons. Psychological This is humiliating or abusive behavior that lowers a person s self-esteem or causes them torment. This can take the form of verbal comments, actions or gestures.
HARASSMENT IN MANY OTHER FORMS Stalking The unauthorized following and surveillance of an individual, to the extent that the person's privacy is unacceptably intruded upon, and the victim fears for their safety. Cyberstalking or Electronic Harassment The use of electronic tools such as email or instant messaging to harass or abuse a person or persons.
HARASSMENT IN MANY OTHER FORMS Hazing Hazing can be found to be harassing in nature and fall within the parameters of a hostile work environment with similar tests to determine the conduct by either supervisors or co-workers to be harassment. (i.e.) nick names, work delegation. Method of establishing hierarchy in the organization
HARASSMENT IN MANY OTHER FORMS Horseplay In Virginia, EMT Defibrillates co-worker. Co-worker dies from cardiac arrest Probationary Period Tight control by the supervising fire officer will eliminate many charges of harassment during the probationary period. These begin at the lower level and should be evaluated for future problems
CHECKPOINT What have you seen or heard on the job? What have you seen or heard that you questioned but was really unsure? What are accepted behaviors in the fire service that make you uncomfortable?
RECOGNIZING HARASSMENT The conduct must be unwelcome to the target of the harassment. Unwelcome means that the employee did not solicit or incite the conduct and regarded it as undesirable. The harasser can be the victim s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. Claimant does not have to be the person at whom the offensive conduct is directed but can be anyone affected by conduct.
RECOGNIZING THE PSYCHOLOGICAL ASPECT OF HARASSMENT
HOW WOULD YOU RECOGNIZE HARASSMENT?
HARASSMENT THAT RESULTS IN A TANGIBLE EMPLOYMENT ACTION By its nature creates a Hostile Environment. Does not have to rise to the legal level before it can have a psychological impact
HARASSMENT THAT RESULTS IN A TANGIBLE EMPLOYMENT ACTION Harassment that results a significant change in an individual s employment status (e.g., hiring, firing, promotion, failure to promote, demotion, undesirable reassignment).
KEY ELEMENTS OF HARASSMENT COMPLAINTS Conduct must affect a term, condition, or privilege of employment. Must be unwelcome. Can be based on race, color, religion, national origin, sex, sexual orientation, age or disability. Is severe or pervasive under a reasonable person standard.
When is an EMPLOYER liable for the employee s actions? If there is quid pro quo sexual harassment by management, the employer is probably strictly liable. Under hostile environment analysis - if there is a policy against sexual harassment and there was a reasonable avenue of complaint that was utilized correctly by both the victim and employer then there will not be liability, unless employer had actual knowledge.
When is an EMPLOYER liable for the employee s actions? The employer would be liable if they knew or The standard for co-worker harassment is Did the employer know, or Should the employer have known. There was no reasonable avenue of complaint.
Coworker Harassment: HARASSMENT By Coworkers The agency is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action.
Laws against discrimination are "not directed against unpleasantness, per se. There is a line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing. Simple vulgarity does not give rise to a cause of action. May have a psychological effect
GUIDELINES FOR UNDERSTANDING A HARASSMENT POLICY
RECOGNITION AND PREVENTION IAFC Human Relations Committee No Tolerance for Discriminatory Behavior Approved 12 September 2006 Code of Ethics for Fire Chiefs Approved May 2003 Human Relations and Inclusiveness Approved March 2004
IAFC Policy Number: 04.01 Adopted 3/2004 IAFC Recommendation on Human Relations and Inclusiveness IAFC strongly encourages fire departments to have written policies with regular training that reinforces same that specifically prohibit disrespectful, hurtful, exclusionary, and/or other unprofessional language including, but not limited to, jokes regarding gender, racial, religious, alternate life styles and/or ethnic jokes and slurs in the workplace and that all personnel are held accountable for following these policies.
Purpose Of Policy To clearly establish the Fire Departments commitment to provide a work environment free from unlawful harassment and hostile behavior
HARASSMENT POLICY SAMPLE WHEREAS: It is the policy of the Fire Department to promote a productive work environment that is free from discrimination and harassment of any kind. WHEREAS: It is the policy of Fire Department that certain rules & regulations regarding employee behavior are necessary for the efficient business operations, for benefit and safety of all employees. WHEREAS: It is the policy of the Fire Department that conduct that interferes with operations or discredits Fire Department or is offensive to stakeholders or staff will not be tolerated
------ Continued WHEREAS: The Fire Department policy includes a zero tolerance for harassing or hostile behavior, extending to all agency-related on and off-site activities while on duty. THEREFORE: The Fire Department will not tolerate verbal or physical conduct that harasses, disrupts or interferes with another s work performance or that creates an intimidating, offensive or hostile environment in any situation.
----- Continued The Fire Department is committed to providing a work environment free of harassment. Fire Department policy prohibits sexual harassment, harassment based on pregnancy, childbirth or related medical conditions, race, religion, creed color, national origin or ancestry, physical or mental disability, medical condition, marital status, age, ordinance or regulation.
----- Continued Harassment of any kind shall not be tolerated. The Fire Department s anti-harassment policy applies to all persons involved in the operation of the Department and prohibits harassment by any employee of the Fire Department, including supervisors and co-workers.
----- Continued Prohibited unlawful harassment includes, but is not limited to, the following behavior: Verbal conduct such as epithets, derogatory jokes or comments, slurs or unwanted sexual advances, invitations or comments; Visual displays such as derogatory and/or sexually oriented posters, photography, cartoons, drawings or gestures; Physical conduct including assault, unwanted touching, intentionally blocking normal movement or interfering with work because of sex, race or any other protected basis; Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss, and offers of employment benefits in return for sexual favors; and Retaliation for reporting or threatening to report harassment.
------ continued If you believe that you have been harassed, submit a written complaint to your own or any other company supervisor first or the Human Resources Director as soon as possible after the incident. Your complaint should include details of the incident or incidents, names of the individuals involved, and names of any witnesses. Supervisors will refer all harassment complaints to the Human Resources Director of the Fire Department. The Fire Department will immediately undertake and effective, thorough, and objective investigation of the harassment allegations If the Fire Department determines that harassment has occurred, effective remedial action will be taken in accordance with the circumstances involved.
------ continued Investigations may be conducted by an outside agency specializing in Human Resource and harassment investigations. Any employee determined by the Fire Department to be responsible for unlawful harassment will be subject to appropriate disciplinary action, up to, and including termination. A Fire Department representative will advise all parties concerned of the results of the investigation. The Fire Department will not retaliate against you for filing a complaint and will not tolerate or permit retaliation by management, employees, or co-workers.
COMMUNICATE POLICY Issue a strong policy from the Fire Chief against harassment Provide a clear definition of harassment using examples of inappropriate behavior Review the policy with your firefighters and employees on a regular basis Discuss the policy with all new employees Ensure that third-party suppliers and customers are aware of your harassment policy
ESTABLISH PROCEDURES Appoint a senior staff officer to oversee the implementation of the policy Train your Battalion Chiefs, Fire Officers, line officers and staff managers to recognize and prevent sexual harassment Outline procedures to use in reporting sexual harassment Designate a personnel officer (HR) or other appropriate fire officer, rather than a direct supervisor, to receive sexual harassment complaints Provide alternative routes for filing complaints Keep all sexual harassment charges confidential
ENFORCE POLICY Make sure employees who bring charges do not face retaliation Safeguard the rights of the accused Investigate all harassment charges quickly and thoroughly Maintain accurate records of the investigation and the findings Take immediate action when harassment is discovered or suspected Discipline appropriately any employee found to have engaged in harassment Safeguard your employees from thirdparty work-related harassment
Employer and Employee Process Diffusion and Problem Solving lowest level Complaint filed with Human Resources Investigation Disciplinary Action Retaliation Prohibited Confidentiality Maintained False Complaints Investigated Limitations Time bar
HARASSMENT BEST PRACTICES Appreciate YOU and your fire department can be held liable if your employees engage in harassment Remember Every harassment charge is extremely serious
HARASSMENT BEST PRACTICES Comprehend Employees who go along with workplace harassment can still be victims of harassment Realize Men as well as woman may be harassed Understand Employees may wait awhile before lodging harassment charges
THANK YOU AND IF YOU HAVE ANY QUESTIONS PLEASE CONTACT US
THE END John K. Murphy JD Deputy Fire Chief (Ret) j.k.murphy@comcast.net Dr. Beth L. Murphy, PsyD Firefighter/EMT (Ret) blmurphy63@mac.com