BY JOHN RUKAVINA AND ALISA ARNOFF
Was he serious? When HR 7152—the “Civil Rights Act of 1964”—was brought to the floor of the United States House of Representatives in early 1964, Representative Howard Smith of Virginia, a staunch opponent of the bill, proposed an amendment—add “sex” to the classes of persons protected by the act. Historians differ. Some believed that Smith thought that adding “sex” would kill the bill, while others noted Smith’s consistent support of the Equal Rights Amendment. The bill didn’t die. Smith’s amendment passed, as did the balance of HR 7152, which was signed by President Lyndon Johnson and became the Civil Rights Act of 1964.
Title VII contains the section of the Act that applies most directly to employer behavior as follows:
“It shall be an unlawful employment practice for an employer–
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (42 U.S. Code, Section 2000e-2).”
Title VII (as well as its various state and local counterparts) applies to the fire service.
Sexual Harassment Is Discrimination
It took 22 years for the United States Supreme Court to decide (unanimously) in the case of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that workplace sexual harassment was discrimination–a violation of Title VII of the Civil Rights Act of 1964. The Court ruled that plaintiff Mechelle Vinson could establish violation of the Act “by proving that discrimination based on sex has created a hostile or abusive work environment.” A complainant with hostile-environment claims must prove that the challenged conduct was severe or pervasive, created a hostile or abusive working environment, was unwelcome, and was based on the plaintiff’s gender. And pay attention: Sexual harassment does not have to rise to the level of sexual activity. The key word is “gender”—a person is being treated in a particular way because of his or her gender. A man can sexually harass a man. A woman can sexually harass a woman. A woman can sexually harass a man (it happens more than you think—the phenomenon of machismo tends, unfortunately, to keep men from making complaints), and a man can harass a woman.
Just because sexual harassment has been addressed by this country’s highest court does not mean that we have clear guidance, a black-and-white standard operating procedure or guideline explaining the difference between asking someone for a date and sexual harassment. What about complimenting someone on their appearance? Could one or more acts of firehouse hazing constitute sexual harassment?
According to political scientist Augustus Cochrane, only 10 workplace sexual harassment complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) annually between 1964 and 1985. In 1986, 624 complaints were filed; in 1990, 2,217 complaints were filed.
A Turning Point
Until 1998, sexual harassment complainants faced an uphill battle in court—in one case, the employer argued that it was not responsible for harassment of one worker by two co-workers because there was nothing in the co-workers’ job description authorizing harassing behavior; thus, when the co-workers engaged in harassment, they were acting outside the scope of their employment, leaving the employer not liable. That case, Faragher v. Boca Raton, 524 U.S. 775 (1998), made it to the Supreme Court, which ruled that “an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim… [for “vicariously,” read “assumed to be”]. A companion case, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), held that an employer’s reporting/investigation/action system, if effective, could also constitute an affirmative defense if the employee fails to use it, but a system that required the employee to report the complaint to the harassing supervisor was not effective. In sum, an employer can establish an affirmative defense if it can show no action was taken against the harassed employee (retaliation) and it established and disseminated a policy against sexual harassment and communicated and established an effective procedure for employees to seek redress for sexual harassment.
Bingo! A major part of the logjam that confronted sexual harassment complainants disappeared—the burden of workplace harassment prevention education was placed on employers, and employers were also responsible for developing an effective harassment complaint handling system. No more “scope of employment” nonsense. So, from 1998, shouldn’t we have seen a regular decline in EEOC sexual harassment charges as employers educated their employees and perfected a systematic way to investigate and manage the handling of sexual harassment complaints?
It hasn’t happened. From fiscal year (FY) 1997 to FY 2018, a low of 23,094 EEOC sexual harassment charges were filed and resolved in FY 2005, and a high of 30,356 charges were filed and resolved in FY 2012. In FY 1997, 24,728 charges were filed; 21 years later (in FY 2018) 24,655, a variation of only .03% over that 21-year period.
Courts continue to wrestle with defining what constitutes “severe or pervasive” conduct and whether the conduct “created a hostile or abusive working environment” (defining “unwelcome” has been less complex; “based on plaintiff’s gender” continues to be controversial in the context of LGBTQ issues in the workplace). From our perspective, harassment based on gender or perceived gender violates Title VII. Sexual orientation or identity is irrelevant.
Why No Progress?
Why aren’t we making more progress? The #MeToo movement is not anything new (Google “firefighter sexual harassment” and you’ll see links to about 1,570,000 results). And what is the fire service doing to reduce exposure not just to carcinogens but to workplace sexual harassment? We’ve been focused on reducing liability, but we’re not effectively addressing the prevention of wrongful conduct in the first place. Have we made it crystal-clear that it’s not acceptable to grope a female firefighter or to place used condoms in her boots—and why? Is the person who engages in such conduct someone we’d trust venting a roof with us?
So, why have efforts to train people on what’s right and wrong failed or otherwise been stymied? Over the past five years, the academic consensus is that employers have approached workplace sexual harassment and sexual harassment prevention as a legal, not a behavioral, problem. As Susan Bissom-Rapp, associate dean of the Thomas Jefferson School of Law, put it, “The whole ethos of training and prevention … has been not to solve the problem, but to avoid liability.”
In a legal context, that makes perfect sense. The Supreme Court wasn’t focused on workplace education that reduced or eliminated harassing behavior but on establishment and dissemination of a policy against sexual harassment as a means of assigning legal responsibility. Perhaps the Court assumed that employers would establish and disseminate a policy that was intended to reduce or eliminate incidents of sexual harassment, but that’s not what’s happened.
According to Nell Gelhaus, a corporate trainer with Dashe specializing in sexual harassment training, “Employees have been sitting through sexual harassment training for decades. But does it work? How effective is it in actually reducing or eliminating sexual harassment in the workplace?” Adds University of Connecticut Psychology Professor Vicky Magley, “It’s frustrating to study an area that has really been minimalized and trivialized.” In short, until just a few years ago, little examination was directed toward the questions of whether typical “off-the-shelf”-type workplace sexual harassment prevention training worked, and, if not, what training methods did work.
Training Programs Back When
What did a typical fire department sexual harassment prevention training session look like in, say, 1990? First, the instructor was usually someone from human resources (HR), who presented the following information:
- The legal (or employer’s) definition of sexual harassment.
- An experienced HR instructor would present some examples of sexual harassment—such as 1970s or 1980s videos of sexual-harassment scenarios that had nothing to do with a fire service work environment.
- A statement that the employer had “zero tolerance” for workplace sexual harassment, which was usually interpreted as termination for any kind of behavior characterized as “harassment,” whether relatively minor (a single dirty joke told to a group) or major (inappropriate touching).
- An explanation of how an employee who believed she’d been sexually harassed could file a complaint.
- A question-and-answer segment and a wrap-up.
Occasionally, the instructor would use a quiz or evaluation instrument of some kind. In our experience, when such evaluations occurred, we were not briefed on the evaluation, and to the best of our knowledge, the evaluation did not result in follow-up training to emphasize the parts of the training that did not appear to have taken. In any event, the training rarely lasted more than an hour.
As computers proliferated in the workplace, sexual harassment prevention training often became an online experience, with built-in quiz questions to identify whether the student was ready to advance to the next section of the training. Online training did not often involve any kind of participant discussion.
Up through today, only a handful of psychologists have examined workplace sexual harassment training. Vicki Magley is one of them. She theorizes that employers are afraid to study the effectiveness of their own training programs. As one group of researchers reported, “Taken together, the surprisingly sparse—yet robust—set of studies on [existing] sexual harassment trainings shows that trainings can improve knowledge of policies and awareness of what is sexual harassment; however, trainings have either no effect or a negative effect on preventing sexual harassment.” (Emphasis added.)
According to Magley, the best predictor of training success is an ethical employer. “When employees perceived that their company was ethical, their knowledge improved and their attitudes changed as a result of the harassment prevention training—they take it seriously because they think that the organization is taking it seriously.” Magley’s conclusion was borne out in a major review of sexual harassment training practices by the EEOC in late 2016.
An Effective Training Program
So, what would a positive and effective sexual harassment prevention training program look like?
- Identify a baseline of “badness” or “goodness” in the organization. (“You don’t know where you’ve gone if you don’t know where you’ve been,” says Magley.)
- Examine your workplace culture—start with a “climate survey.” Don’t ask if employees have been harassed—ask about specific working conditions–e.g., “Are offensive jokes common?” In Minneapolis, Minnesota, the city relies on “employee resource groups”—women/minority/men/veterans—that meet monthly in a safe environment, update their evaluation of workplace culture, interact in a larger group, and report to management.
- Try to impress on employees that the training is there to support the well-being of employees, not (as Magley notes) to “check the liability checkbox.” One way to do this is to talk about real-world workplace impacts—resignations, declining transfers, or other work assignments, and so forth.
- Shine a light on actual cases. This may require some legal privacy advice if the actual cases are in your own organization, but don’t worry—firefighters probably already know about the real-life cases more than the chief does. And fire service magazines and Web sites are a great source of fire service examples.
- Avoid harasser/victim depictions in a legal context—when that happens, those legal characterizations “led those being trained to reject [the training] as a waste of time because they didn’t think the labels applied to them, known as ‘identity threat reaction,’” according to Shannon Rawski of the University of Wisconsin-Milwaukee. As Eden King of Rice University notes, “the men who were probably more likely to be harassers were the ones who were least likely to benefit.”
- “Zero tolerance” can be a land mine. To most employees, “zero tolerance” means getting fired regardless of the severity of the harassment—whether the harassing behavior is a dirty joke or inappropriate touching. “A harsh zero-tolerance policy toward sexual harassment can also backfire when alleged perpetrators don’t feel that the process is fair and victims fear making a complaint because they may not want to perpetrator to be fired,” according to James Quick, University of Texas-Austin. Advises lawyer Robin Shea, “If you must call your policy ‘zero tolerance,’ be sure to make it clear that (1) allegations of behavior that violates the policy will be thoroughly investigated (in other words, you won’t automatically assume that the accused is guilty), and (2) if confirmed, the employee will be subject to disciplinary action up to and including termination… depending on the circumstances and the severity of the conduct….”
- Be careful how “inherent bias” is presented and discussed—“Demonstrating that [‘we’re all biased’] can build motivation for training—but the awareness that all people have biases should be paired with the knowledge that most people are trying to overcome their biases, or students might think that bias is OK ‘because it’s normal,’” according to Eden King, then an associate professor at George Mason University.
- Training in “bystander intervention” can be very powerful—there’s a natural tendency not to intervene, even as harassing behavior is occurring, but bystander intervention has been proven one of the most effective ways to stop a harassment incident, or to talk to the harasser and victim later.
- Finally, many employers build a foundation for effective sexual harassment prevention training on a broader emphasis of workplace civility—promoting general respect and civility in the workplace. Given the emphasis on the fundamental need for trust in the fire service (“I’ve got your back”), workplace civility standards can help reduce or eliminate a host of problems, including workplace harassment.
How would these objectives be reflected in the mechanics of a training class? Eden King makes these recommendations:
- The class should last more than four hours. A careful review of the elements of a positive and effective program should demonstrate that sexual harassment prevention training is not a one-hour-and-done enterprise. We recognize that it’s tough to set aside four consecutive hours for sexual harassment prevention training. But isn’t it more difficult to spend the time and money–$300,000–defending a workplace harassment lawsuit? It’s a simple cost/benefit analysis. Wouldn’t you rather dedicate that $300,000 to new or replacement equipment or facilities—or pay enhancements? Could your department handle two two-hour sexual harassment prevention training sessions—or, at worst, four one-hour sessions over four consecutive workdays? (If you add “settlement” to your earlier “firefighter sexual harassment” search, you’ll get about 3,660,000 results.)
- It should be conducted face-to-face rather than online. Just as much learning occurs through class member interaction as from the instructor, and you can’t fake attendance or participation in a class as you can online (see the next bullet).
- It should include active class member participation and small-group activities.
- It should be conducted by a supervisor or an external expert with working knowledge of the fire service (HR has enough to worry about without having to be responsible for firefighter training). The criticality of the participation of supervisors and managers can’t be overemphasized—“If the chief ain’t here, this can’t be important.”
- It should include some kind of “specific, challenging, and attainable” goal-setting activity. Students with goals are more likely to change their behavior (an example—“I’ll back off a dirty joke when I’m not sure everyone will appreciate it.”)
Supervisors’/Managers’ Role
Now, let’s get back to the role of supervisors and managers in sexual harassment prevention.
Since workplace sexual harassment can be an uncomfortable topic of discussion for anyone, supervisors and managers need to be prepared to carry out their responsibilities—preferably before sitting in on classes for the “troops.” Here are some key training elements for company and chief officer training:
- Clear and concrete policies—absolutely no “legalese”—and action plans for implementing policies.
- Easy-to-understand and realistic methods for dealing with harassment that they witness, are told about, or know of.
- Clear instructions for how to report harassment incidents up the chain of command.
- There is a duty to respond, even in the absence of a complaint.
The importance of these management/supervisory issues was demonstrated by the City of Los Angeles when, in December 2017, it adopted a specific harassment incident reporting policy: “All City departments must report sexual harassment incidents in their departments within 48 hours of hearing about them. This includes complaints from employers, customers, visitors, volunteers and contractors.” After the new policy went into effect, Los Angeles received as many reports in two months as it did in the previous five years.
In the face of #MeToo, the appearance of new studies and reports on effective sexual harassment training, and the strong endorsement of training improvement by the EEOC, are things looking any better?
Earlier this year, HR/risk management consultants ThinkHR surveyed 1,235 organizations, each averaging 282 employees. The results (“2019 Harassment Prevention Study”) included two “key insights”: First, only 18% of employers include bystander intervention training in their sexual harassment prevention training. Second, only 13% of employers are conducting workplace climate surveys to measure the impact of harassment.
We’ve started the journey, but we’ve got a long way to go.
JOHN RUKAVINA is the director of Public Fire Safety Services, an executive consulting and teaching enterprise. He has served as a chief in fire departments in St. Joseph, Missouri, and Asheville, North Carolina, and as the director of public safety in Wake County, North Carolina. He has a law degree from the University of Minnesota School of Law and is a charter member of the National FireAcademy’s Executive Fire Officer program.
ALISA ARNOFF is a member of the Chicago law firm of Scalambrino & Arnoff, LLP; her practice focuses on employment and labor law. She provides training to fire departments and has presented at fire/EMS conferences on reducing discrimination, harassment, retaliation and bullying, and properly conducting investigations. Arnoff counsels firefighters throughout the country, particularly female firefighters, on systemic issues that impact fire/EMS.
