April/May 2005 Issue Number 70

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...

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. (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.

Discrimination or Legitimate Cause? 

Some people think that it is impossible to discipline or fire any member of a so-called protected class, because if you do, that person will sue, and the employer will lose. Certainly people can sue if they feel they have experienced discrimination, but if there was a legitimate cause for the action, they will lose. 

Several recent cases illustrate this point. A pilot sued after being fired shortly after 9/11, saying he had been discriminated against because of his Arabic appearance and Islamic religious beliefs. The court found that there was "uncontroverted evidence" that the reason for the pilot's dismissal was his violation of company policy (he was in a drinking establishment while wearing his uniform.) A clerk at a store sued after being fired for what she believed to be race discrimination. The court found that the reason for her dismissal was the fact she had stolen money from another employee at work.

Many more cases fit this model. Someone is disciplined or fired and claims that it is because of discrimination based on race, sex, ethnicity, religion, color, age, or disability. But the facts show that the employee in question did not satisfactorily do the job, or violated company policy, or otherwise gave the organization valid reasons for taking the employment action. In these cases, the employer wins. 

Things do get more difficult when an employee is unsatisfactory AND that person has been discriminated against at work. Then the courts must sort out if there was a causal relationship between the bad performance and the bad treatment, and if one supersedes the other.

Firing an employee should always be a last resort. But if an employee is truly inadequate, or has violated laws or significant internal policies, it should be possible to discipline or fire that person, no matter what he or she looks like. The best way to maintain clarity in this area is to spend time hiring the best people, to treat all employees fairly and with equal support, and to address problems early while there is still time to make positive change. In such a workplace, the need to fire people will occur very rarely, and so will lawsuits.

Sources: St. Louis Post-Dispatch, February 14, 2005
Brenda Adams v. Wal-Mart Stores Inc. 7th Circuit Court of Appeals, 02-1768 

 

A federal judge has ruled that a 1995 Chicago Fire Department exam discriminated against blacks. More than 6,000 black applicants participated in the class action lawsuit. The judge ruled that the cutoff point which created the overwhelmingly white pool of candidates was meaningless. A city official commented that the test "was a valid measure of job performance." 

Source: USA Today March 24, 2005 

 

 

Getting Physical 

Is harassment that involves unwelcome touching significantly different from that which includes only verbal abuse? Although both would be categorized under the type of harassment known as hostile environment, it may take less physical conduct to make a harassment complaint stick. 

Consider the case of Kathleen Loughman. Ms. Loughman worked at a Chicago area pizza restaurant for several years, starting in June 2000 when she was 17 years old. Ms. Loughman was bothered by inappropriate sexual comments and gestures made by co-workers, but the basis of her complaint was three physical confrontations that took place over the course of nearly two years. In all three cases, co-workers touched her in sexual manner, cornered her in remote parts of the business, and physically blocked her from escaping. Ms. Loughman complained to supervisors on all occasions. In the first instance, a supervisor spoke to the offending employee, and the behavior was not repeated by him. The other two events were perpetrated by different workers at the restaurant and did eventually lead to disciplinary action some time after the fact. Ms. Loughman quit her job after the third encounter and filed suit against her employer for hostile environment harassment. 

The lower court issued a summary judgment in favor of the restaurant, but on review by the 7th Circuit Court of Appeals, this decision was reversed and remanded for trial. The reason for the reversal was simple: although the company had taken some steps to mitigate the harassment aimed at Ms. Loughman, the court felt that "greater vigor is necessary when the harassment is physically assaultive." The court noted that the plaintiff was "not complaining merely of inappropriate jokes or comments, though she put up with those as well, but of serious physical violations." The court concluded that given the severity of the incidents, a reasonable jury could determine that the employer's actions for mitigating the problem were insufficient. 

This decision was a victory for the plaintiff in the sense that she will get her day in court to prove her case. She still has no assurance of winning that case. However, this decision is a strong statement that physical harassment will be considered differently from that which does not involve unwanted touching. 

Source: Kathleen N. Loughman v. Malnati Organization Inc. 7th Circuit Court of Appeals, 04-1564

© Linda F. Willing, 2005