Fire Department In Flames With Discrimination and Retaliation Claims
Quite often, retaliation claims bite employers in the backside rather than employees’ underlying claims for sexual or race-based harassment and other forms of discrimination.
That’s what I was thinking as I read about a complaint filed last month against the Hillsboro government and chiefs at the Hillsboro Fire & Rescue Department. Three current employees allege that two department officials discriminated against them based on sex, race, age and disability, created a hostile work environment, and retaliated against each of them when they complained to leadership.
Let’s take a look at these allegations.
“You have to win over the guys.”
One female employee won more accolades than I have room here to describe. Having rose to the ranks of captain in another department, the female employee received awards, sat on safety boards, and wrote protocol along with the U.S. Department of Defense. Rejecting her for leadership positions, including division chief, the Deputy Chief allegedly told her that she was not well-liked and, really, had to “win over the guys” to get ahead.
This is one of several allegations, and, allegedly, HR took months to launch an investigation.
“The Department isn’t mature enough to elevate you.”
Next, an official rejected another plaintiff, a deputy fire marshal who leads the Department’s Latino community outreach program, for a division chief position. The official told this employee he was the most qualified person for the job and impressed the powers that be, but awarded the job to a less qualified and credentialed white candidate.
Huh. “Why?” I asked myself.
The complaint alleges that the leadership position would be ‘too much to overcome,’ ‘not well received’ by the department, and that they were not “mature enough” to elevate this plaintiff to the leadership position.
Coincidentally, he had raised a pay issue with the City a few years earlier and then suffered one retaliatory action after another from the department since that time.
What about that third employee?
At 57, and after being injured several times, he reported one of the chiefs to HR after (i) observing that chief falsifying male recruits failing grades and (ii) the chief asked him to pass the recruit. When the employee refused, the chief retaliated by accusing him of incompetence and removing him from training duties.
What’s the Law?
Title VII of the Civil Rights Act of 1964 (Title VII) and Washington state law prohibits discrimination based on or because of an employee’s inclusion in a protected class such as sex or race. Sexual harassment is a form of sex discrimination just like racial harassment is a form of race discrimination.
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 considers it to be offensive and abusive.
Retaliation violates Title VII and state anti-discrimination laws as well.
Complaining to HR or a supervisor about unlawful workplace discrimination or harassment is “protected activity” under Title VII. The law prohibits an employer from subjecting an employee to an “adverse action” (such as failure to promote) when that employee has opposed any practice made an unlawful employment practice by Title VII.
The Equal Enforcement Opportunity Commission (EEOC) considers “opposition” to an unlawful employment practice to include complaining to management about alleged discrimination or unlawful harassment, in reasonable good faith, against oneself OR others.
Other examples of what the EEOC considers protected opposition include:
- providing information in an employer’s internal investigation of an EEO matter;
- refusing to obey an order reasonably believed to be discriminatory;
- advising an employer on EEO compliance;
- resisting sexual advances or intervening to protect others;
- passive resistance (allowing others to express opposition);
- requesting reasonable accommodation for disability or religion;
- complaining to management about EEO-related compensation disparities; or
- talking to coworkers to gather information or evidence in support of a potential EEO claim.
If the allegations against the Hillsboro department and its chiefs prove true, the retaliation claims are far easier to establish.
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 how it handles complaints about discrimination or harassment
- Your Employee Handbook should state a clear, updated anti-discrimination and anti-harassment policy;
- Have a well-defined procedure for investigating any claims of sexual harassment (or harassment based upon inclusion in any other protected class) and follow the procedure. HR should timely investigate all claims;
- Train management, not just employees, on EEO policies and laws;
- Encourage reporting of sexual harassment by anyone subject to or a witness to it instead of excusing it;
- 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.
- Document, document, document any employee’s claim of sexual, racial, or other harassment or discrimination as well as the steps you take to stop and prevent it.
Sexual harassment, race-based harassment, and other forms are all perpetuated when nurtured by others and continues unopposed. Otherwise, defending an $800,000 claim for harassment, discrimination, and retaliation is another option.