March 1998
Volume 12, Number 3

Same sex harassment ruled illegal; effect unclear
A federal law that bans on-the-job sexual harassment can apply even when the harasser and victim are the same sex, the Supreme Court ruled earlier this month. The unanimous vote by the court revived the federal lawsuit of a Louisiana man who says he was sexually pursued and harassed by his male supervisor and two other men during his four months working on a Gulf of Mexico oil rig. The ramifications of the decision and its effect on public safety personnel practices are far from clear however. 

The decision in Oncale v. Sundowner Offshore Services, Inc., No. 96-568, overturns a Court of Appeals ruling that Title VI of the Civil Rights Act of 1964, which prohibits workplace discrimination because of sex, does not apply to same sex harassment. The lawsuit was initiated following Oncale's resignation from his job after a supervisor and co-workers subjected him to sex- related humiliating actions and physically assaulted him in a sexual manner. One co-worker threatened him with rape.

The Supreme Court noted that same sex harassment was not the principle evil that Congress was trying to combat when it enacted the fair employment law over 30 years ago. However, the clear language of the statute refers to discrimination because of sex, without limitation on the respective genders of the offender and the victim.

Additional litigation applying the new ruling in the workplace is certain to follow. For example, gay rights advocates hailed the decision as creating a legal cause of action for individuals who are harassed on account of their sexual preference. The court decision does not exclude that possibility. More conservative legal observers, however, argue that the decision simply is the result of a plain reading of the statute and an aggrieved plaintiff of

 any sexual persuasion must be able to prove that the alleged discrimination was based on "sex," not sexual preference.

A particularly bothersome problem for public safety personnel relates to how the decision applies to locker room humor, pranks, and good-natured hazing of rookies, particularly when the actions have sexual connotations but are conducted only in the presence of other employees of the same sex. In recent years, such behavior has been universally condemned as producing a hostile work environment when female police officers or fire fighters objected to the actions of their male co-workers. The Oncale decision clears the path for similar objections to be made by males who might view such sex-related activities as offensive. 

However, the Supreme Court emphasized that federal law does not reach genuine, but innocuous, differences in the ways men and women routinely interact with members of the same sex. The court urged judges and juries not to mistake ordinary socializing in the workplace, such as male-on-male horseplay or intersexual flirtation, for unlawful discriminatory conditions of employment. As an example, the Justices noted that a professional football player's working environment is not pervasively abusive if the coach smacks him on the buttocks as he heads onto the field, even if the same behavior would reasonably be considered as abusive by the coach's secretary, whether male or female, back at the office. "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive," wrote Justice Antonin Scalia for the 
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court.

The ruling does not assure Oncale of winning his case but merely affords him the

 opportunity to attempt to prove that the actions of his supervisor and co-workers violated federal fair employment law.

Vice President's appearance highlights IAFF conference 
An appearance by Vice President Al Gore highlighted the 16th annual Legislative Conference of the International Association of Fire Fighters (IAFF), AFL-CIO, held March 16-18. The Vice President told the delegates at the Washington, D.C., meeting that "Fire fighters are America's most trusted, most admired professionals." Gore praised fire fighters and unionism, calling the IAFF a "fusion of two of the noblest institutions on the civic landscape." The Vice President also reminded the IAFF members of a series of issues in which the Clinton administration had supported fire fighters. Specifically, Gore mentioned the administration's endorsement of the 2-in/2-out rule at fire scenes and the newly instituted federal policy of investigating fire incidents involving the death of a fire fighter.

"Every fire fighter and every worker should have the right to join their co-workers in negotiating fair wages and working conditions," the Vice President stated, indicating White House support for the proposed Public Safety Employer-Employee Cooperation Act that would establish bargaining rights for fire fighters in states where no such rights now exist. He also decried government efforts at privatization, saying privatization has a place but

 "public safety is in a league of its own." Gore added,

"And as long as Bill Clinton and I are in office, nobody will privatize our federal fire fighters." In what may be one of the earliest endorsement in Campaign 2000, IAFF General President Alfred K. Whitehead welcomed Gore saying if he runs for President, the IAFF "will be there for you, just as you've been there for us. We want you to know we'll be the first." 

In other activities, delegates heard a variety of presentations ranging from issues in emergency medical care to the effect of proposed campaign financing laws of fire union political efforts. The delegates devoted Tuesday, March 17, to visiting members of Congress and educating them on various fire service issues. They were also told that IAFF is close to the "magic number" to gain a congressional subcommittee hearing on the proposed national bargaining rights bill. According to Representative Tom Davis (R-VA) who addressed the convention, 200 co-sponsors of the bill are needed to guarantee subcommittee consideration. To date, 173 of the 435 members of the House of Representatives have signed up in support of the proposal. Several members of Congress have requested a hearing. 

Court says no right to work as volunteer fire fighter
A professional fire fighter enjoys no constitutionally enforceable right to work as a volunteer fire fighter for another department, a federal appeals court ruled recently. A panel of judges for the Seventh Circuit Court of Appeals ruled that a provision in a collective bargaining agreement between the city and the fire fighters' union that prohibited fire fighters from participating in other fire fighting organizations does not violate the freedom of association protected by the First Amendment.  The collective bargaining contract between the City of Fort Wayne, Indiana, and Local 124 of the International Association of Fire Fighters (IAFF), AFL-CIO, does not restrict off-duty employment except fire fighters may not work for any other paid or volunteer fire department. In addition, the union constitution provided that members not advocate membership in any other organization, including volunteer fire departments. Violation of this provision subjected a member to fine or expulsion from the union. Seven fire fighters
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brought suit against the city and their union alleging that the bargaining contract and the union constitution prohibitions against participating in volunteer fire fighting violated their First Amendment rights of free association and free speech. The trial court rejected the claims and fire fighters appealed.

Holding its constitution did not amount to "state action," the appeals court dismissed the fire fighters' union from the suit. State action, i.e., conduct under color of law, is a prerequisite for a federal court suit to enforce a constitutional deprivation. In reviewing the city's actions, the court utilized the balancing test that originated in the 1983 Supreme Court case of Connick v. Myers. Applying the Connick standard, the judges determined that

 membership in a volunteer fire company is a matter of public concern. However, when the interests of the fire fighters is balanced against the interests of the government employer, the scales tip in favor of the employer. The court found that the city's stated goals of reducing injuries, of avoiding conflict between the fire fighters' duty to the city and duty to another fire fighting organization, and minimizing the liability for paid sick leave outweigh the fire fighters' interests in volunteering for other fire fighting organizations. Thus, the restriction on membership in the volunteer company is constitutional. 

The decision came in the case of Messman v. Helmke, No. 96-4038. The ruling is binding in the Midwest states covered by the Seventh Circuit.
Special feature

Probationary fire fighter pay in relation to journeyman pay
Virtually every fire department in America begins the career of new employees in the rank and pay classification of probationary fire fighter. Depending upon the practice of the agency, "probies," as they are sometimes called, are either assigned to the fire academy for training or have recently graduated from the academy and receive their first assignment to a firehouse. In either case, these personnel are normally compensated at a pay level different from that of full service fire fighters.

The probationary period for new fire fighters may last for a period usually no less than six months and may extend for up to 18 months. Upon successful completion of the probationary period, the fire fighter gains whatever job tenure and seniority rights accrue within the particular department. For fire departments that operate under merit systems, civil service laws, or collective bargaining agreements, these job rights normally include discipline and dismissal only for "cause" as well as a right to procedural due process in any future disciplinary proceeding. Prior to receiving tenured

 status, the probationary fire fighter is considered to be an at-will employee who can be terminated for any reason or no reason. During the probationary period the fire fighter is closely supervised and evaluated regarding how he or she implements previous training into actual fire fighting and rescue situations. If the individual is found to possess the appropriate knowledge, skills, and personal attributes to successfully perform as a fire fighter, the person advances to "Fire Fighter I" or similar basic rank and pay grade. 

Even fire service agencies that do not afford job tenure to fire fighters frequently utilize the probationary period for newly hired personnel. While on the surface the process appears illogical _ why have a probationary period if the employee continues in an at-will status upon completion? _ such a status simply means the new fire fighter is subject to more intensive supervision and scrutiny the first few months on the job.

This month, Fire Service Labor Monthly examines the compensation practices of selected fire
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departments in the handling of probationary fire fighters. Table One displays a list of cities along with the base salary difference between a "probie" and the beginning step of a tenured fire fighter. In addition, the percentage differential between the two levels of compensation is presented. In most departments, the wage jumps upon completion of the probationary period. In some cases, the probationary fire fighter base wage increases upon graduation from the fire academy. In a few instances, more than one wage boost may occur between initial appointment and completion of probation. The cities in the sample were selected for their geographical diversity. Included within the sample are jurisdictions with very large fire fighting forces as well as those employing only a moderate number of personnel. No effort was made to make the sample representative of all departments. Thus, caution should be exercised in generalizing about compensation practices based solely upon the data presented. However, the diversity of the sample and, more importantly, the diversity of the results would tend to indicate that no real pattern exists in establishing the pay relationship.
Table One
Base Wage Difference between Probationary and Tenured Fire Fighters 
In Selected Cities
City Difference in pay in $ Percentage increase

Boise, ID 3,517 12.6

Canton, OH 5,057 20.8

Chicago, IL 2,311 4.5 

Greenwich, CT 2,252 6.4

Honolulu, HI 2,328 8.2

Houston, TX 1,409 5.2

Kansas City, KS 3,092 12.7

Knoxville, TN 536 2.5

Los Angeles, CA 5,261 13.6

Miami, FL 4,404 15.3

Milwaukee, WI 1,066 4.2

Omaha, NE 7,858 31.4

Seattle, WA 4,992 12.8
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The data suggest a wide range of approaches to the issue, from a modest increase (Knoxville) to an increase of nearly one-third (Omaha). Over one-half of the cities presented grant base wage increases in the double digits when a fire fighter completes the probationary period. 

Whatever approach a jurisdiction takes in deciding the level of compensation for a newly

 tenured fire fighter, presumably some policy basis does exist for that determination. In some instances, the hefty jump in pay may be attributable to the fire fighter entering the union bargaining unit. In many cities, probationary fire service personnel are excluded from the coverage of the labor agreement. Thus, the employer, without the pressure of collective bargaining, establishes salaries. 
Litigation

Supreme Court update
The Supreme Court last month declined to consider the question of whether a fire department may lawfully require all fire fighters, including those not assigned to suppression activities, to be able to perform all tasks of a combat fire fighter. In City of Mount Vernon, New York v. Stone, No. 97-979, a lower appeals court found that the Americans with Disabilities Act (ADA) protected a paraplegic fire fighter who was assigned to fire alarm and prevention activities and who had never been asked to engage in suppression action. The inaction by the Supreme Court leaves in place the appeal court's ruling that the summary judgment for the city was improper. The matter now returns for trial on the question of whether the light duty assignment produces an undue hardship on the employer or is a reasonable accommodation as defined by the ADA. ambulance with a defibrillator. The city moved for summary judgment on the grounds that under Ohio law it was immune from suit. Opial countered that the city fell within certain statutory exceptions to the general rule of sovereign immunity. Specifically, Opial alleged that the city acted in a willful and wanton manner when it refused to purchase the defibrillator. Trial court granted the city's motion for summary judgment, finding that sovereign immunity protected the municipality from liability. Opial appeals arguing that Ohio law exempts the city from liability only for "hands-on" provision of EMS service and not from liability for the decision not to purchase the defibrillator. .

HELD: Ohio statute provides that a political subdivision, such as a city, is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision in connection with its governmental functions. Included within the definition of "governmental functions" is the provision of police, fire, emergency medical, ambulance, and rescue service or protection. Several exceptions exist to this general rule. However, the statute further provides that immunity from liability exists when the loss is due to the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, and materials unless the judgment or discretion was exercised with malicious purpose, in bad faith, or

Cases of interest

Civil liability
Opial was a registered nurse. One day she suspected that her husband was having a heart attack. She summoned the city emergency medical services (EMS), which responded to the scene. The EMS personnel utilized cardiopulmonary resuscitation but were unable to revive the man. The EMS unit did not carry a defibrillator, a device that sends shock waves to the heart to revive it. Subsequently, Opial filed suit against the city and some of its officials claiming the city was negligent in not equipping the
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in a wanton or reckless manner. Here, Opial claims the decision not to purchase the defibrillator was made with a "malicious purpose, in bad faith, or in a wanton or reckless manner." The term "malice" has been defined as the willful and intentional design to do injury, or the intention or desire to harm another. The term "bad faith" imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of fraud. Likewise, "willful conduct" implies an act done intentionally, designedly, knowingly, or purposely, without justification or excuse, and a wanton act is done in reckless disregard for the rights of others which evinces a reckless indifference of the consequences to the life, limb, health, reputation, or property of others. Clearly, the city exercised its discretion in deciding how to acquire or allocate resources when it chose not to buy the defibrillator. Opial has presented no proof to establish that that decision was made with a malicious purpose, in bad faith, or in a wanton or reckless manner. Thus, under Ohio law, the city is immune from any liability claim arising from that decision. Summary judgment for city affirmed. [Opial v. City of Rossford, 688 N.E.2d 1073 (Ohio App. 6 Dist. 1996)] HELD: Utah statute provides that a dependent spouse of a retired fire fighter is entitled to 75 percent of the fire fighter's pension allowance upon the fire fighter's death. The law further states that in case of divorce a former spouse is entitled to the court-designated share of the spouse's death benefit. The retirement board concluded that the former spouse is entitled to the benefit only if the retired party is remarried at the time of the death. The board reasoned that under the statute no spousal benefit exists to begin with unless the retired employee is married to somebody. A "spouse" must exist before a benefit exists. According to the board, a "former spouse" is not a "spouse" within the meaning of the law. Thus, a former spouse's right to a retirement stipend does not vest unless the employee is married to somebody at the time of death. Such an interpretation is in error. When interpreting statutes, a court is guided by the longstanding rule that a statute should be construed according to its plain language. The plain language of the statutes in question is clear. The first part describes the spousal benefit while the second part deals with the contingency of a divorce. Likewise, this is the only reasonable interpretation of the statute. A pension is a form of deferred compensation by the employer. If rights to those benefits are acquired in marriage, the court must consider those benefits in equitable distribution of marital assets. Additionally, it is irrational to base a former spouse's right to an economic benefit upon the decision of the ex-spouse to marry another. Reversed for fire fighter's former spouse. [Epperson v. Utah State Retirement Board, 949 P.2d 779 (Utah App. 1997)] 

Pension rights
After more than 43 years of marriage, Epperson, a fire fighter, divorced his wife. For most of the marriage, the wife had not worked outside of the home and was, therefore, financially dependent upon Epperson. Less than six months after the divorce, Epperson retired from the fire department and began drawing his pension. After the divorce, a court awarded the ex-wife one-half of the retirement benefit and all spousal benefits upon Epperson's death. Subsequently, the retirement board advised the ex-wife that under its interpretation of Utah law, she would not be eligible for the spousal death benefit unless Epperson had remarried at the time of his death. She appealed that determination but, following a hearing, the decision was upheld. Ex-wife appeals.

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