May/June 2004 Issue Number 59

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

Women Chief Officers Conference November 11-14, 2004, Wyndham Hotel, San Diego. For more information, go to www.womenfireofficers.org

Fire-Rescue International August 12-15, 2004, New Orleans, LA. For more information, go to www.iafc.org

Values and Behavior

A federal judge has awarded nearly $150,000 to a man who was fired from his job for refusing to sign a statement that said he valued the beliefs of others. Signing the statement was a required part of the company's diversity program.

The employee said that his religious beliefs make it impossible for him to personally value other lifestyles or belief systems. He went on to say, "I think [the company] should be able to expect certain behavior from people, but not force their beliefs on people."

He's got a point.

Many diversity programs try to change people's values and beliefs. In the case above, they even go so far as to require signing a kind of values-based loyalty statement. This approach is bound to fail, for a number of reasons.

The biggest problem with this approach to diversity is that it simply doesn't work. People's beliefs and values are developed early in their lives, as a result of a variety of factors related to upbringing and experience. By the time someone arrives in the workplace, his or her beliefs are strongly set and not likely to change just because some HR director says they should.

Another issue here is the natural resentment that people feel when their beliefs and values are challenged or denigrated. Forcing someone to deny their personal beliefs only creates antagonism toward the controlling agency; it does nothing to change the beliefs. If anything, it makes them stronger in response to the perceived attack. And forcing someone to sign the type of statement described above has an ominous Big Brother quality to it that offends even those who otherwise would buy into the program. I do value diverse lifestyles, and I'm not sure I would have signed that statement either.

Employers have no right or ability to change the beliefs or values of their employees. What employers do have the right and responsibility to do is to create an inclusive, equitable work environment for everyone. This is done by setting clear standards for behavior and supporting people through training and remediation for meeting those standards.

Recent court cases clearly outline the difference. A worker can have strong religious beliefs, but if she proselytizes her co-workers on duty, she can be disciplined. Someone can belong to Confederate heritage groups off duty, but if he displays a Confederate flag at work in violation of policy, he can be fired. Behavior is what employers have every right to control, because behavior is what workers are getting paid for. Their beliefs are their own, and as long as they do not interfere with professional, respectful and inclusive behavior at work, those beliefs shouldn't be anyone else's business.

People can change as adults of course, but they change from the inside out, as a result of some perceived need to change. This is where strong enforcement of behavioral codes can lead to attitudinal changes. If someone treats another person respectfully, that person is likely to respond in kind. This sets a positive tone that could lead to further interaction. Two people who might be quite different on the surface may find that they have underlying similarities and can form a relationship based on that personal discovery.

Or maybe not. Maybe two people's core beliefs will never be in alignment. Maybe there will always be fundamental differences between them. But in a well-led work environment, these two people can rise above their differences to work together respectfully and find common ground in getting the job done. Isn't that what we're all really after anyway?

Source: Associated Press, April 6, 2004

Bowing to pressure from the White House, the Office of the Special Counsel (OSC) reinstated its long-standing anti-discrimination policy to include sexual orientation. The head of the agency had previously said that he did not feel that protection for sexual orientation was included in the law, and removed references to sexual orientation from its website and complaint forms in late February. The OSC has a long history of enforcing anti-discrimination for federal workers on the basis of sexual orientation. The reversal in recent policy came after outcry from members of Congress and human rights groups.

Source: Associated Press, April 10, 2004

Who is a Supervisor?

In its landmark 1998 sexual harassment decisions Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, the Supreme Court established a standard of vicarious liability for harassment by supervisors, unless an employer can establish a very specific affirmative defense (see Archives, August/September 1999). What the Supreme Court did not do in these decisions is clearly define who qualifies as a supervisor. Clarifying this definition has been left to the circuit courts in the ensuing years.

Consider the case of LaDonna Joens, a box maker for a meat packing plant. Ms. Joens was responsible for making boxes for three different divisions within the company. According to Ms. Joens, a foreman from one of those divisions, Herman Johnson, routinely yelled and swore at her and singled her out for verbal abuse. Ms. Joens was the only woman working in this part of the plant. Ms. Joens further said that she repeatedly complained about Mr. Johnson's behavior to union officials and company supervisors, but nothing was done. Ultimately, she filed a complaint of sex discrimination with the state civil rights commission.

Ms. Joens's claim failed, for several reasons. One of those reasons was that the court refused to accept Herman Johnson as a supervisor of Ms. Joens. Most courts hold the standard that a supervisor must have the power to take tangible employment action toward the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties. The Second Circuit Court of Appeals has adopted a somewhat broader standard, which says that an alleged harasser is a supervisor if he or she possessed authority to direct the employee's daily work activities, even if that person otherwise lacked the power to take tangible employment action. The court hearing this case found that Mr. Johnson met neither of these standards, and in fact would best be described as an internal customer of Ms. Joens.

Employers can also be liable for harassment by co-workers and peers, but the standard of liability is quite different. To meet this standard, Ms. Joens would have had to prove that her employer knew or should have known of the illegal conduct and failed to take proper remedial action. Ms. Joens failed to make this case, primarily because she had not specifically claimed sex-based harassment when complaining about Mr. Johnson's behavior.

Who is a supervisor? This question is still being answered by the courts. But for those who are clearly in supervisory positions, keep in mind that discrimination law holds you to a high standard of liability.

Source: LaDonna Joens v. John Morrell & Co. 8th Circuit Court of Appeals, No. 03-1573

© Linda F. Willing, 2004