February 2020 Issue Number 235

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...

Where is the Policy?

A former Evergreen, MT firefighter/paramedic has filed a wrongful termination claim against the department alleging she was fired because of her gender and singled out by the department for her social media use. She also claims that she was sexually harassed during her time on the fire department.

The firefighter was disciplined and ultimately terminated as a result of posting photographs of herself in fire and fitness gear to her social media account. Some of the photos portrayed her in form-fitting or revealing clothing while others showed her wearing firefighter turnout or station gear. She describes herself as a social media influencer who has over 80,000 followers on Instagram.

When one of the fire board members took issue with the content of her social media presence, the firefighter made a few modifications to it but continued posting similar photos. Department officials at one point said that she had violated department policy with her social media presence.

The problem is, the department did not have a social media policy in place when this statement was made. They still don't.

Do fire departments have the right to control how members portray themselves in a pubic forum as members of that organization? There is a lot of case law that says they do. There are legal guidelines and precedents for how First Amendment rights may be balanced against professional accountability. But any action taken in this regard must be done in a standardized framework. You need a policy and that policy must apply equally to everyone.

Many fire departments are like this one, which admits, "I’m going to say procrastination" as the reason no policy was developed even as current issues clearly demanded one. Social media is a relatively new phenomenon and fire departments are busy. But fire officials avoid facing the reality of social media at their own peril. The time to develop a social media policy is right now.

Source: Daily Inter Lake, January 7, 2020

 

The City of Paterson, NJ is paying $80,000 to settle a lawsuit filed by a fire captain who claimed he was given less desirable work assignments because he rejected private business propositions made by Paterson’s former fire chief, Michael Postorino. The captain, who is still a member of the fire department, suffered no financial loss as a result of the alleged retaliation. The fire chief in question has since retired.

Source: Paterson Press, December 11, 2019

 

Disparate Impact and "Reverse Discrimination"

Twenty-four Cleveland firefighters, all holding the rank of lieutenant, have filed a lawsuit against the City of Cleveland for disparate impact discrimination based on race. All of the firefighters identify as Caucasian by race, and two of them also identify with Hispanic ethnicity.

Disparate impact discrimination can occur when a protected class is disproportionately and negatively affected in an employment process, such as hiring or promotion. The EEOC established a formula in 1978 to guide employers regarding this type of discrimination. Disparate impact discrimination does not have to be intentional, although the plaintiffs in this case are saying that it was for the captain's promotional process that took place in 2017.

Specifically, the plaintiffs claim that the promotional test was not content-valid and that the results of the test unfairly favored African-American candidates, based on the statistical outcome of the promotional list. Sixty-six candidates completed the exam, including 44 Caucasians, 14 African-Americans, and three identifying as other. Of those, 52 people were posted to the eligibility list and 22 of those are likely to promote before the expiration of the list. Among those scheduled for promotion, 13 were Caucasian, 8 were African-American, and one identified as other.

The plaintiffs in the case claim that the city's prior commitment to improving racial diversity within the fire department gave it motive for unfairly skewing the results of the promotional process. Last fall, the EEOC accused Cleveland’s fire department of discriminating against blacks, Hispanics and women and threatened to sue if the city does not correct the violations.

It should be noted that this lawsuit was brought under federal Title VII employment discrimination law, the law that protects all employees. This case is a good example of how there really is no such thing as "reverse discrimination" under the law, although this might be one of the first times a disparate impact claim has been made by Caucasian males.

Source: John Donohoe et al v. City of Cleveland, Ohio, Cuyahoga Court of Common Pleas, #1894650

 

© Linda F. Willing, 2020