If we had no sexual harassment we would have no children.

“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

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

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

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 co-workers, 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?

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

YOU ANALYZE

• Create response comments

– Individually

– Group

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).

--- 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 care-giving 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

AWARD

• After three week trial, the federal court jury found

that 39-year-old was a victim of gender

discrimination.

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

OVERALL PSYCHOLOGICAL

IMPACT

• Individual

– Psychological

– Physical

– Social

• Co-Workers

CHECKPOINT

• How does this information presented

compare with your understanding so far?

• What can you add based on your

BASIS OF HARASSMENT

• Under Title VII of the Civil Rights Act of 1964

– Harassment by employers against employees is actionable and a recognized cause of action.

• Under the Civil Rights Act of 1991Amendments

– Provide for damages in employment discrimination cases, and to clarify provisions of the 1964 act

TO INCLUDE

• Race

• Gender

• Religion

• Sex

• Disability

• Age

• Pregnancy

VARIOUS FORMS OF

HARASSMENT

• Verbal

• Physical

• Visual

• Bullying

• Stalking

• Cyber stalking

• Psychological

• Hazing

SEXUAL HARASSMENT

• 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.

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?

• 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 a significant

change in an individual‟s employment

status (e.g., hiring, firing, promotion, failure

to promote, demotion, undesirable

reassignment).

HARASSMENT THAT RESULTS IN A

TANGIBLE EMPLOYMENT ACTION

•

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.

KEY ELEMENTS OF

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

– Did the employer know, or

– Should the employer have known.

– There was no reasonable avenue of

• Coworker Harassment:

– The agency is liable if it knew or should have

known of the harassment and failed to take

immediate and appropriate corrective action.

HARASSMENT

By Coworkers

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

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 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

--- 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,

--- 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

--- 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

--- 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 third-party work-related harassment

Employer and Employee Process

– 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)