July 1998 
Volume 12, Number 7

Supreme Court clarifies employer harassment liability 
In a decision that could increase an employer's legal exposure to sexual harassment charges, the Supreme Court last month ruled that an employer can be held vicariously liable for acts of its supervisors. The 7 to 2 ruling came in Faragher v. City of Boca Raton, Florida, No. 97-282, involving a female part-time lifeguard who claimed her supervisors subjected her to uninvited and offensive touching as well as lewd comments. She also alleged that one of the supervisors had pantomimed various sex acts in her presence. The city had adopted a sexual harassment policy but neglected to disseminate it to the marine safety division where the lifeguards worked. Beth Ann Faragher apparently never brought the matter to the attention of senior city officials. The city subsequently suspended two of the supervisors following the complaint of another female lifeguard. A U.S. District Court ruled that the harassment was pervasive enough to support an inference that city officials knew of the behavior and that the supervisors were acting as the city's agents when they committed the harassing acts. The court awarded Faragher one dollar in nominal damages. 

On appeal, the full Eleventh Circuit court reversed, finding that the supervisors were not acting within the scope of their employment and, thus, liability could not be placed on their employer. 

Justice David Souter, writing for the Supreme Court majority, noted that supervisors have special authority enhancing their ability to harass, and an employer has greater capacity to guard against misconduct by supervisors than by common workers. Thus, the supervisor's misconduct can reasonably be imputed to the employer. 

A 1986 Supreme Court decision held, 

 however, that an employer is not "automatically" liable under federal fair employment laws for the harassing conduct of a supervisor. The court reconciled this decision by creating an affirmative defense for employers. To avoid liability for the supervisor's sexually harassing conduct, an employer must show it exercised reasonable care to avoid or eliminate harassment and that the complaining employee failed to take advantage of the employer's safeguards or take reasonable care to prevent harm. Justice Souter noted that the first requirement could be met by the existence of a stated anti-sexual harassment policy. The second burden is met when the employer demonstrates that the aggrieved employee failed to utilize an existing complaint procedure. But, the Justice cautioned, "No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or unsuitable reassignment." 

The court reinstated the original judgment, finding that the record supported the conclusion that the employer had not taken the steps necessary to qualify for the affirmative defense. 

The decision appears to put public and private employers on notice that sexual harassment by a supervisor attaches liability to the employer unless proactive measures have been taken. To avail itself of the defense developed by the Supreme Court, personnel experts suggest an employer adopt a formal written policy prohibiting sexual harassment, the policy be distributed to all employees, and a meaningful procedure be in place for the reporting of workplace misconduct. In addition, the cautious employer will remind personnel of the policy on a periodic basis and permit the reporting of sexual harassment outside of the 
July 1998
Volume 12, Number 7
normal chain of command. Additionally, the employer should establish a review procedure of transfer, demotion, and discharge recommendations  to ensure that they are not connected to past acts of sexual harassment. Failure to take such proactive measures may make harassment defense difficult. 

Off of welfare and into the fire house 
Economic good times for much of the country has placed pressure on local governments to find qualified employees. Pay in government jobs traditionally cannot compete with compensation available in the private sector. At the same time, local governments have come under fiscal pressures to operate as efficiently as possible. A California county has found a solution to remedying any shortage of fire fighters. Kings County officials have set up an apprenticeship program that would allow residents to fulfill their welfare-to-work training by becoming fire fighters. The plan, approved last month by the county Board of Supervisors, is a unique outlet for the CalWORKS program, designed to move people from public assistance to paychecks. 

"It gives them valuable, on-the-job experience and the basic qualifications for a fire fighter job," Jim Kilner, training officer for the Kings County Fire Department, told the Fresno Bee newspaper. "Some people may have the capabilities, and this gives them the chance." 

The goal is for 10 participants to go through basic fire fighter training. Afterward, CalWORKS will pay for their attendance at the California State 

 Fire Marshal Fire Fighter Academy, Kilner said. The new fire fighters should be ready for assignment in October. 

In the past, the County Health and Human Services Department has trained welfare recipients for positions in public works and hospitals and for clerical jobs. What makes the fire fighting position unique is that department must first find people interested in the specific occupation. After that, the candidates must pass traditional fire fighter selection criteria. A county official said that so far "a handful" of people has been chosen to begin training in August. 

Though the fledgling fire fighters will work for the county, their benefits will still be paid through CalWORKS. "It's a win-win situation for us," Kilner told the newspaper. 

In recent years, the county fire department, which serves a number of small communities in the San Joaquin Valley, has been squeezed by a shrinking budget. Seven of the 10 stations have only one staff member per 48-hour shift. The CalWORKS fire fighters would augment the staff by one person per station. 

DOJ enforces EMT disability rights 
Emergency medical technicians (EMT's) with hearing disabilities will now be able to take training courses offered by the Virginia Department of Health, under an agreement reached June 29 with the U.S. Department of Justice. 

The agreement resolves a complaint filed with the Justice Department alleging that the Virginia Department of Health's Office of Emergency Medical Services (EMS) violated the Americans with Disabilities Act (ADA). It alleged that EMS failed to provide effective communication to EMT's with hearing impairments who were trying to obtain 

 training credits to get certified or re-certified as EMT's. 

"Qualified EMT's should have the same chance to attend training and certification programs sponsored by the state," said Bill Lann Lee, Acting Assistant Attorney General for Civil Rights. "Through effective communication, EMT's with disabilities can improve their skills, and advance in their careers." 

Under the agreement the state will: (1) provide sign language interpreters in training programs with program moderators; (2) transcribe 
July 1998
Volume 12, Number 7
video training programs required for certification; and, (3) publicize the availability of interpreters and transcripts and provide them free of charge to people with hearing impairments. 

Title II of the ADA requires state and local governments to make their communication with people with hearing disabilities as effective as communication with non-disabled people. This is the first agreement the Department of Justice has reached regarding accessibility of state training programs to people with hearing impairments. 

Earlier this year, the Department reached agreements with Fairfax, Virginia, and Prince 

 Georges County, Maryland, to allow qualified people with hearing impairments to serve as volunteer fire fighters and technicians. In 1997, the Department entered a consent decree with Nashville and Davidson County, Tennessee, requiring the county to hire an individual with a hearing impairment for an EMT position, and hire qualified individuals with hearing impairments for EMT positions in the future. 

Policies like the one required by last month's agreement will help ensure that these individuals can succeed in their jobs, according to a Justice Department spokesman. 
Litigation

Supreme Court update 

 A property owner owes no duty to a fire fighter to exercise care so as not to require the special services for which he is trained and paid. This case presents a different circumstance, however. Here, the fire fighter was injured while performing a function akin to that of a building inspector, not that of a fire fighter. Case law in other jurisdictions holds that public employees, such as building inspectors, health inspectors, meter readers, and telephone repair people are owed the duty of reasonable care while on premises in their professional capacity. Absent the emergency conditions of a fire, the Fireman's Rule should not be applicable to bar negligence actions against tort-feasors. The Fireman's Rule developed as an exception to the "rescue doctrine," which provides that an injured rescuer may recover damages from the original tort- feasor. Fire fighters are hired, trained, and compensated to deal with dangerous situations affecting the public as a whole. Because of their exceptional responsibilities, when fire fighters are injured in the performance of their duties, the cost of their injuries should be borne by the public as a whole through the worker's compensation laws and the provisions of insurance benefits and special disability pensions. When, as here, a routine inspection is being carried out, the fire fighter can choose not to proceed if the apparent risks present 
The Supreme Court ended its 1997-98 term this month with no fire service related cases pending. During the summer months, requests for review will continue to be filed but will not be acted upon until October 5 when the court opens a new term. 

Cases of interest 

Fireman's rule 
Orth was a city fire fighter whose duties included making safety inspections of various properties. One day while making an unannounced visit to Cole's apartment complex, Orth opened the door to an electrical panel, intending to see whether the breakers were properly labeled so that emergency personnel would know which to use in a given situation. Upon opening the panel door, he received severe burns to his face and arm, apparently due to an electrical malfunction inside the panel. He filed suit against Cole and the apartment management company. Trial court dismissed the suit on the basis of the Fireman's Rule. Injured fire fighter appeals. 

HELD: In 1977, Arizona, by case law, adopted the Fireman's Rule. The court ruled that a fire fighter cannot complain of negligence in the creation of the very occasion for his engagement. 
July 1998
Volume 12, Number 7
unreasonable dangers. In this circumstance, the relative duties and liabilities of the parties can then be addressed by whatever traditional rules are applicable regarding premises liability. Since the fire fighter was injured in a non-emergency, non-rescue situation, traditional tort rules apply and the Fireman's Rule does not. Reversed for fire fighter. [Orth v. Cole, 955 P.2d 47 (Ariz. App. Div. 1 1998)]  common usage. If the language of a statute is plain and unambiguous, analysis need go no further. A review of the text of the initiated ordinance reveals that it does not contain a "sunset provision" whereby the ordinance would expire on a certain date. In addition, the city's latest interpretation of the ordinance is inconsistent with its previous interpretation of the measure. It is a cardinal rule in dealing with a statutory provision that it is to be given a consistent and uniform interpretation so that it is not taken to mean one thing at one time and something else at another time. It is also significant that the voters rejected the proposal to repeal the parity pay ordinance. Any doubtful interpretation of an initiated ordinance must be resolved in the favor of the popular will. Trial court erred in accepting the city's interpretation that the city no longer had an obligation to provide parity pay to fire fighters. Reversed for fire fighters. [Stricklin v. Hays, 965 S.W.2d 103 (Ark. 1998)] 

Compensation 
In 1980, an initiative petition was filed with the clerk of the City of North Little Rock. The proposed ordinance provided that North Little Rock police officers and fire fighters were to receive salaries and benefits equal to or greater than those of the Little Rock police and fire departments, rank, seniority, time in grade, and service considered. The citizens of North Little Rock approved the ordinance in a 1980 election. Subsequently, the city council passed an ordinance appropriating sufficient money to fund the provisions of the ordinance and bring fire fighter and police officer salaries up to the level of Little Rock. Later in the year, the city council sought to exclude the police chief and his assistant from the coverage of the pay ordinance. A subsequent suit found that such action was inconsistent with the ordinance. In 1983, the city council referred to the voters a resolution that would have repealed the parity pay ordinance, but the voters rejected the proposal. For several years, the parity pay ordinance requirements were met in the contract between the city and the fire fighters' union. When the contract expired at the end of 1995, however, the parties were unable to reach a new agreement and the fire fighters filed suit claiming that their salaries and benefits were no longer equal to or greater than those of fire fighters in Little Rock. The city claimed that once it had initially established pay parity in 1981, it was under no obligation to continue to provide future pay parity. Trial court agreed with the city and dismissed the suit. Fire fighters appeal. 

HELD: In interpreting a statute, courts give the words in the statute their ordinary meaning and 

Worker's compensation 
The town employed Domingo as a fire fighter. Fire fighters were given the opportunity to volunteer for special details. If a fire fighter worked a special detail, he was paid for the hours worked. In order to be considered for special detail work, it was necessary for a fire fighter to place his name on a list. One day, Domingo had the day off, but his name had reached the top of the volunteer list, and he was offered the special detail available that day. He accepted the detail, which consisted of being a fireguard at a local college where there was a considerable amount of construction being performed. The detail consisted of eight hours work and the town paid Domingo for the hours. Before reporting to the assignment, Domingo stopped at a fire station to pick up a portable radio. After finishing the detail, he returned to the station to drop off the radio and the proceeded to drive home. While en route home, Domingo was involved in a traffic accident when his vehicle was hit by another vehicle that had failed to stop at a red light. As a result of the injuries sustained in the traffic accident, 
July 1998
Volume 12, Number 7
Domingo was absent from duty for a period of time. He utilized sick leave pursuant to the fire fighters' collective bargaining agreement. He then filed for worker's compensation benefits claiming that the injury occurred while he was on duty. The town rejected his demand and a lawsuit followed. Trial court ruled for Domingo finding that his injury occurred within the scope of coverage of the Massachusetts worker's compensation law. Town appeals. 

HELD: The Massachusetts Worker's Compensation Act provides benefits for injuries "arising out of and in the course of employment." Prior case law holds that an injury "arises out of employment" if it arises from the nature, conditions, obligations, or incidents of the employment. In making this determination, a court is required to look at all aspects of an injured employee's employment. Included among the factors to be considered are whether the injury occurred during a period for which the employee was being paid, when he was on call, and while he was engaged in activities consistent with, and helpful to, the accomplishment of his job functions. In this case, Domingo volunteered for special detail for which he was remunerated above and beyond his regular pay. His superior officer did not assign him to the duty. Likewise, he was not on call or actually working at the detail or otherwise engaged in any activity consistent with his duties as a fire fighter when he was injured. Additionally, Domingo cannot be characterized as a traveling worker who would have worker's compensation coverage while going to and from his place of employment. Trial court erred in granting worker's compensation benefits in this matter. Reversed for town. [Domingo v. Town of Wellesley, 694 N.E.2d 43 (Mass. App. Ct. 1998)] 

 would be burned every four or five years. Nebraska statute banned open burning. However, the fire chief of the local fire district could waive the open burning ban by issuing a permit. Pletan obtained such permits in the past when he burned his property. In 1995, he obtained a permit from the fire district. The permit stated that it was being issued in accordance with state law and Pletan signed the permit following a line that read, "Signature of person assuming responsibility in the event the fire becomes out of control." Pletan, along with three other men and his son, ignited the fire on his property one afternoon. Before finishing the controlled burn, the fire jumped a creek into an area that Pletan had not intended to burn. Pletan and his helpers attempted to control the runaway fire with a tractor and a water truck. While he and his assistants were dealing with the fire, a neighbor saw the fire burning out of control and called the fire district. Various fire trucks and ambulances responded to the scene. Pletan assisted the fire fighters by scouting the fires and, in one instance, used his tractor to extract a fire truck that had become stuck in the mud. At the same time, unaware to Pletan, another truck had become stalled in the field. This fire truck stalled either because the land was damp or there was a mechanical problem. In either case, the driver was attempting to repair the rig when a fire erupted underneath the truck. The fire was not connected with the out of control fire on Pletan's property, but apparently was ignited as a result of the truck's contact with the grass. While fire fighters were attempting to extinguish that fire, they had to abandon their efforts because the out of control fire spread and destroyed the fire truck. The fire district brought suit against Pletan seeking damages for loss of its fire truck. The district alleged that the permit issued to Pletan was a contract and that Pletan breached the contract by not assuming responsibility for the loss of the truck. The district also claimed that the truck was damaged due to Pletan's failure to warn the fire fighters of the wet areas on the property. Trial court ruled for property owner and fire district appeals. 

Fireman's rule 
Pletan owned 160 acres of rural farmland. On a yearly basis he began clearing parcels of his land by burning different parts. As part of this controlled burning, Pletan rotated which parcels of land were burned each year so that every parcel 
July 1998
Volume 12, Number 7
HELD: The fire district contends that the permit issued to the landowner constituted a contract between the landowner and the fire district and that Pletan breached the contract by refusing to pay for the damaged truck. The fire district cites the signature of Pletan to the permit stating he would assume responsibility in the event the fire went out of control. The trial court concluded that inclusion of this language was intended to limit the liability of the fire district to third parties, not provide the fire district with a legal claim. State statute authorizes the issuance of fire permits. A permit is in the nature of a license that grants a privilege to do what would otherwise be unlawful. Thus, because a license is merely a personal privilege, it is not a contract between the authority granting it and the person to whom it was granted. In this case, the fire permit granted Pletan the privilege to conduct open burning, something that would otherwise be unlawful. As a license, the permit did not create contractual obligations between Pletan and the fire district. As to the negligence claim, trial court ruled that the Fireman's Rule barred any liability on the part of Pletan. The fire district, however, claims that the Fireman's Rule does not apply in this case because Pletan intentionally set out to burn the land. Under Nebraska law, the Fireman's Rule negates liability to fire fighters by one whose negligence causes or contributes to the fire that, in turn, causes injury to a fire fighter. While the rule is commonly seen as applying to personal injuries to fire fighters, it has been applied to damaged personal property as well. The rationale for the Fireman's Rule originates from the common law premises liability rules by classifying a fire fighter as a licensee to whom the owner of the premises owes only the duty to avoid inflicting injury by willful, wanton, or intentional acts. A more modern view establishes the Fireman's Rule on the bases of assumption of risk or public policy considerations. Fire fighters employed for the benefit of society in general are on the premises of others, not because of any private duty owed to the owner, but because of a duty owed to the public as a whole. The purpose of the fire fighter's  profession is to confront danger. The public hires, trains, and compensates fire fighters to deal with fires that will inevitably occur. Often, especially with fires, negligence causes the occasion for the fire fighter's presence on the property. It offends public policy to say that a citizen invites private liability merely because he happens to create a need for public service. Although entry onto a person's property by fire fighters is foreseeable, the timing of the entry cannot be predicted. While the fire fighters are performing their duties, the owner is without authority to control their actions. The cost of meeting the risks of fire should be borne by the government. Under these public policy considerations, it makes no difference that the initial fire was intentionally started by Pletan or was done so under a permit. Neither of these factors affects the underlying rationale of the rule that a fire fighter is trained to confront danger at the public's expense. Pletan had a duty only to refrain from injuring the fire district by willful or wanton negligence and to warn of hidden dangers known to him but unobservable by fire fighters in the exercise of ordinary care. There is no indication that Pletan engaged in willful or wanton negligence in this case. As to the duty to warn, the fire district claims that Pletan should have warned them of the wet areas on the property. Such a duty to warn arises, however, only if there is an opportunity to warn. Pletan did not call the fire district and was not present at the time the fire fighters initially entered his property or at the time the fire truck stalled. Thus, the landowner did not have an opportunity to warn of the soft spots about which he had knowledge, if any, prior to the time the truck was burned. Pletan did not breach any duty he had to warn the fire district about soft spots on his property. Summary judgment for landowner affirmed. [Syracuse Rural Fire District v. Pletan, 577 N.W.2d 527 (Neb. 1998)] 

Don't miss this month's 

Salary Tracker!