By: Amy Epstein Gluck

Oy.

That’s what I thought when I read this article about a Cook County (Illinois) jury that awarded a combined $11,213,000 to a Country Club Hills firefighter in her claim against the city for sex discrimination, sexual harassment, and retaliation.

It seems like yesterday, but it was in fact last month that I told you here about a federal jury award of $3.35 million to a female ex-firefighter in Ohio who alleged continued sexual harassment. And I thought that was a big number.

In a 2012 complaint, the Cook County plaintiff alleged she was passed over for a promotion and retaliated against for reporting misconduct. She later amended her complaint to include allegations that firefighters regularly watched porn at the fire station during work hours and played videos for her to watch to try and intimidate her. When she threatened to sue, her colleagues and supervisors retaliated against her.

In 2015, just before she went on administrative leave, she reported enduring years of verbal abuse from male firefighters. She said they even once broke down the door while she was showering.

“Then the chief handed [her] a towel and said, ‘Relax, it’s firehouse fun,’” she said.

Fire Departments: ignore this blog—and the law—at your peril.

What Is the Law?

Title VII of the Civil Rights Act of 1964 (Title VII) and myriad state and local laws prohibit  discrimination based on or because of an employee’s inclusion in a protected class such as sex, race, religion, age, disability, or other legally protected characteristic under federal, state, or local anti-discrimination laws. Sexual harassment is a form of sex discrimination just like racial harassment is a form of race discrimination.

There are two types of sexual harassment: “hostile work environment” and “quid pro quo” harassment. It is important to understand the kind of conduct, behavior, and comments that can lead to a hostile environment in your workplace. Subjecting an employee to sexually charged comments, conduct, sexual innuendo, and similar conduct may subject an employer to liability under Title VII if it rises to the level of sexual harassment by creating a hostile work environment.

Such comments or conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. And, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

We covered all of this and more in Sexual Harassment Prevention 101.

Retaliation is equally violative of Title VII. Complaining to HR or a supervisor about unlawful workplace discrimination or harassment is “protected activity” under Title VII, which prohibits an employer from subjecting an employee to an “adverse action” (such as termination, pay cut, demotion, lack of promotion) when that employee has opposed any practice made an unlawful employment practice by Title VII.

Such opposition includes complaining to management about alleged discrimination or unlawful harassment, in reasonable good faith, against oneself or others. Which the plaintiff firefighter certainly did in this case—the jury sure thought so anyway.Why Does This Keep Happening?

Remember the organizational conditions that most breed sexual harassment:

(1) a skewed gender ratio, such that most employees are male,

(2) job duties and tasks that are historically masculine in nature, and

(3) organizational tolerance of offensive behavior.

As we wrote about here and here, all of these factors exist here!

Do we have an uneven gender ratio? Check. Fire departments are still male-dominated work forces. In fact, according to DataUSA, 95.1% of all firefighters are men.

Hmm, maybe a diverse and inclusive environment would have helped.

Remember, as we wrote about heretrue parity in the workplace can raise productivity and efficiency while enhancing employee satisfaction and increasing revenue. Moreover, solid anti-discrimination and anti-harassment policies and dismantling workplace biases and discrimination must “trickle down” from the top, which did not happen in this case.

Next, do we have job duties that were once performed almost only by men? Check check. In fact, it was not until the mid-1970s that women began to be paid as firefighters and could choose firefighting as a career.

And, last but not least, we seem to have a department-wide tolerance of offensive behavior.

Allowing subordinates to break down the door when the one woman is showering is probably going to be deemed tolerance of offensive behavior. Just sayin’. And we know that organizations that tolerate offensive behavior “typically have far greater problems with sexual harassment.”

Rich and I say in almost every harassment or discrimination post that employers must demonstrate a top-down commitment to equality, anti-discrimination, and anti-harassment. Training would have helped too. Do you have employees who simply refuse to get with the program? FIRE THEM. It could cost you $11 million otherwise.

Employer Takeaway or How to Stop the Bleeding

A fire department may not be able to control that most of its employees are male or that such job duties have been viewed as historically masculine. However, a fire department, like any employer, can control the climate and tone of the workplace by setting one that values diversity and inclusion, along with our old favorites:

  1. Have a clear, up-to-date anti-discrimination and anti-harassment policy in the old employee handbook;
  2. Have a well-defined procedure for investigating any claims of sexual harassment (or harassment based upon inclusion in any other protected class) and actually follow the procedure;
  3. Train your employees to be decent human beings…just kidding, I mean, train them on EEO policies and laws. Our firefighters here had to know that watching porn at work and trying to get the one female firefighter to do so too was not great behavior;
  4. Encourage reporting of sexual harassment by anyone subject to or a witness to it;
  5. Don’t retaliate against the person who complains about harassment. Do you think that person wants to be the one scuttling over to HR? I wrote here about the underreporting of sexual harassment—since so many women fear losing their jobs, they often do not report the harassment.
  6. Document, document, document any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.

I told Rich back in November 2017, that sexual harassment is perpetuated when it is nurtured by others and continues unopposed; but rather than placing the onus solely on women to report — along with the credibility issues entailed and often-present victim shaming — studies show that if men are accountable for their own actions and oppose sexism and harassment when they find it, sexual harassment is far more likely to abate.

Or, similarly composed and comported organizations can continue paying multi-million-dollar jury awards.

Isn’t following the mandates of Title VII so much easier?