February/March 2005 Issue Number 68

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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National Fire Service Staff and Command Course sponsored by Maryland Fire-Rescue Institute. Ocean City, MD, March 9-16, 2005. Linda Willing will be leading one session during this course. Go to www.mfri.org for more information.  

11th International Conference of Fire Service Women March 29-April 3, 2005. Montgomery County, Maryland. Go to www.wfsi.org for more information.  

FDIC (Fire Department Instructors Conference) April 11-16, 2005, Indianapolis, IN. Linda Willing will be presenting a workshop on decision making at this conference.  

FDIC (Fire Department Instructors Conference) West June 4-8, 2005, Los Angeles, CA. Linda Willing will be presenting a workshop on decision making at this conference. (Note that this is a new location and month for this conference).   

Fire-Rescue International August 9-13, 2005 Denver, CO. This is a new location for this conference. Linda Willing will be teaching a pre-conference seminar on August 9th entitled "The Art of Getting Along." Go to www.iafc.org for more information about the conference.

Grooming Standards Revisited  

Should male and female firefighters be held to the same standard of appearance on the job? Should women be required to cut their hair in the same manner as men? If women are allowed to wear earrings at work, does this mean that men can too? If you have different grooming standards for men and women, can this be the source of a discrimination complaint?  

A recent case in the 9 th Circuit Court of Appeals, though controversial in its outcome, does shed light on these questions. The case concerned a woman, Darlene Jespersen, who worked for many years as a bartender at Harrah's Casino in Reno, Nevada. By all accounts, Ms. Jespersen was an exemplary employee who frequently was commended by customers for good service. Throughout the 1980's and 90's, Harrah's had encouraged its female employees to wear makeup at work, although did not require it. Ms. Jespersen tried wearing makeup briefly, but did not like it. Among other reasons, she said that makeup made her feel "dolled up like a sex object" and undermined her credibility when needing to deal with unruly patrons at the bar.

Ms. Jespersen's refusal to wear makeup was not an issue for her employer until February 2000, when it instituted its "Beverage Department Image Transformation" program. Among other requirements of this new program was that all women wear a specific formula of makeup every day at work. Ms. Jespersen refused to comply with this requirement, and as a result, after nearly 20 years of excellent service to her company, she was fired.  

Ms. Jespersen sued for sex discrimination in district court, saying that the new grooming standards put a discriminatory burden on women. Whereas men were simply required to be neat and clean, women were required to have their hair "teased, curled or styled" and wear a combination of cosmetics, which consumed both time and money when used. She lost her case in lower court, and again on appeal, despite a strongly worded dissent by one justice.  

The basis for the decision was that the grooming standards at Harrah's were fair, because even though they imposed different requirements on men and women, there were specific standards of appearance for both sexes. The court referred to its own precedent that grooming standards that apply differently to men and women do not constitute discrimination based on sex. (See Baker v. Cal. Land Title Co. 9 th Circuit 1974). The court also stated that grooming and dress standards are entirely outside of the purview of Title VII because Congress intended that Title VII only "prohibit discrimination based on immutable characteristics associated with a worker's sex."  

The decision in this case seems to clearly uphold the legality of different grooming standards for men and women at work, and would thus support fire departments maintaining different standards of appearance for male and female firefighters (such as women being allowed to have long hair, but not men.) This is good news, to a point. Although it is good to see fire departments easing off military buzzcuts for women (and men too, for that matter), one must question whether wearing earrings to work is really an essential right. It is also ironic that a decision that might assist women firefighters in having more freedom with their appearance at work, actually arises from a case that resulted in the limitation of freedom for other women.  

Source: Darlene Jespersen v. Harrah's Operating Company Inc. 9 th Circuit Court of Appeals, No. 03-15045  

 

The National Labor Relations Board has ruled that nonunion workers do not have the right to have a coworker present when they are called by managers for investigative or disciplinary meetings. This ruling affects 87% of all American workers.  

Source: The New York Times, January 2, 2005  

Freedom of Expression, Within Reason  

Can there be limits on individual expression outside of the workplace? In some circumstances yes, according to a recent unanimous U.S. Supreme Court decision.  

John Roe (a pseudonym) was a police officer with the City of San Diego who made sexually explicit videotapes of himself in his spare time and sold them on eBay. In the videos, he was dressed as a generic police officer while performing sex acts. He used a false name and an address out of the area for marketing the videos. When this activity was brought to light at his workplace, Mr. Roe was ordered to immediately cease all activities related to this side business. When his employer was not satisfied that he had met these requirements, Mr. Roe was fired.  

He sued for violation of his First Amendment right to freedom of expression, and lost in lower court, but later prevailed in the 9 th Circuit Court of Appeals (see Archives April-May, 2004). The city then appealed the case to the U.S. Supreme Court, which reversed the 9 th Circuit's decision. It dismissed the logic of the 9 th Circuit that Mr. Roe's conduct represented "speech on a matter of public concern." On the contrary, the court said, "Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech."  

In making judgments about such First Amendment claims, the high court has long used the "Pickering balancing test" which states that a public employee's speech is protected if it touches on a matter of "public concern." This decision was further clarified by a subsequent decision ( Connick ) which made the distinction between speech that is a matter of public concern, rather than that which is a matter of personal interest.  

The Supreme Court stated, "There is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test." Further, the court recognized that Roe's behavior, while not directly linked to his employer, did have a negative impact on them and was designed to exploit his employer's image. The decision was made "per curium," which is the strongest unified decision the court can make.  

Source: City of San Diego, California et al v. John Roe ,U.S. Supreme Court, No. 03-1669

© Linda F. Willing, 2005