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

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

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

Thomas Nee, president of the BPPA, said, "Our affiliation with the AFL-CIO through the IUPA brings a whole new element of protection for our officers." Unlike many jurisdictions, where emergency medical service (EMS) personnel operate under the fire department, Boston EMS personnel function under the auspices of the police department and thus also will be members of IUPA.

The other major addition announced was affiliation of the 1,500 member Cleveland Police Patrolmen's Association (CPPA). The Cleveland officers bring the total number of Ohio jurisdictions

Both the BPPA and the CPPA serve as bargaining agents for patrol officers in their respective departments.

Supplementing these major city locals, statewide IUPA organizations in Colorado and Connecticut have been formed recently. The Colorado Coalition of Police and Sheriffs bring approximately 1,000 new members into IUPA while another 800 officers entered the IUPA fold with the creation of the Connecticut Coalition of Police and Sheriffs. Additionally, in keeping with its international label, a new local union was announced for Puerto Rico. The Federacion Puertorriquena de Policias brings 8,000 additional members to IUPA. Other IUPA locals outside of the continental United States include local unions in the American Virgin Islands.

In his comments Gallegos outlined reported corruption problems in CLEAT. A former member of the CLEAT board of directors, along with two of the group's attorneys, have been indicted on various fraud charges. The former board member also faces murder conspiracy charges.

Gallegos also claimed CLEAT "pushed legislation through the Texas Legislature which impacts law enforcement solicitation and has been of great concern to the Texas state lodge. Obviously, they are attempting to limit our ability to gain a financial foothold and want to cut off funds critical

The article, which appears in the February issue of the FOP Newswatch, confirms that in 1996 CLEAT, which is affiliated with the Communication Workers of America (CWA), AFL-CIO, approached Gallegos about the FOP linking up with the union.

FOP is the largest police labor organization in America, claiming 270,000 members. CLEAT, with about 16,000 members, is one of the primary participants in the infant Coalition of Public Safety Officers (COPSO), a CWA effort at linking local police unions from across the nation. COPSO has enjoyed some recent success in gaining members in Arizona and New Mexico, FOP president Gallegos' home state.

Census of federal law enforcement officers

Approximately 74,500 full-time law enforcement personnel are employed by the federal government. About 60 percent of these work for the four largest agencies. As Table One shows, the largest federal employer of law enforcement personnel is the U.S. Immigration and Naturalization

Police departments in many American cities employ far more sworn personnel than all but the largest of federal agencies. However, like their municipal counterparts, federal law enforcement organizations become fairly small fairly quickly. Only 15 federal agencies employ in excess of 500 full-time police or investigative personnel.

BJS has identified 55 separate federal civilian agencies employing individuals with authority to make arrests and carry firearms. When classified by duties, 43 percent are assigned investigative and enforcement responsibilities. Another 21 percent work in corrections. Only 16 percent of federal law enforcement officers provide police patrol and response services akin to those delivered by local police agencies. Non criminal investigative and enforcement activities are performed by 13 percent of the personnel.

California has the greatest number of agents, 10,469, followed by Texas and New York. The District of Columbia ranks fourth despite the number of facilities and agencies headquartered there.

Supreme Court update

Review was also refused in Oliveri v. Rodriguez, No.97-927, wherein a probationary Chicago police officer was fired on the grounds of sexually harassing female officers during academy training. A lower court rejected the former officer's claim that the termination curtailed his liberty of employment without due process. The refusal to review leaves that determination in place.

Denial of review was also rendered in City of Mount Vernon, New York v. Stone, No. 97-979. This matter attempted to raise the question of whether the Americans with Disabilities Act (ADA) precludes a fire department from requiring all fire fighters, including those in support positions, to be able to perform all of the essential functions of a combat fire fighter. The Supreme Court's inaction leaves in place a lower court ruling finding that the ADA protects a paraplegic fire fighter in this situation.

Finally, the court declined to consider Chan v. Wodnicki, No. 97-1111, wherein a police officer was transferred for invoking his Fifth Amendment privilege against self-incrimination before a grand jury. The federal appeals court had found no liability on the part of the police superintendent because the officer did not lose rank or any normally expected compensation.

A recently filed case seeking review is Bresnahan v. California Highway Patrol, No. 97-

Cases of interest

HELD: Harrison contends that his Fifth Amendment right against self-incrimination was violated because of the exercise of his right to silence. The Fifth Amendment not only protects

HELD: While the former officer acknowledges that his employment was terminable at the will of the city, he claimed that termination violated his right to privacy in his marital relationship. The fundamental right of privacy embodies the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government. The Supreme Court has recognized that the right to marry is part of a fundamental right of privacy protected by the Constitution. This right, however, does not invalidate every state action that has some impact on marriage. Government action must interfere directly and substantially with family choices before it is unconstitutional. In this case, the city did not directly or substantially interfere with Singleton's right to marry when they terminated him on the basis of his wife's recorded statement threatening to frame the chief of police. Singleton presented no evidence that his termination significantly discouraged, let alone made practically impossible, his marriage to his wife. Singleton also claimed that the termination infringed on his intimate association right. As a component of the First Amendment right of association, the right of intimate association guards against excessive

HELD: The ADA prohibits discrimination against a qualified individual with a disability. The ADA imposes upon employers a duty to provide reasonable accommodations for known disabilities unless doing so would result in some hardship to the employer. In order for a plaintiff to establish a case of discrimination in violation of the ADA, the plaintiff must prove she has a disability, that she is qualified to perform the essential functions of the job, and that she suffered an adverse employment action due to her disability. The law defines "disability" as a physical or mental impairment that substantially limits one or more major life activities

HELD: An individual is disabled as defined by the ADA, if he has a physical or mental impairment that substantially limits one or more of the major life activities of such individual. Valle's condition fits within the meaning of a "physical impairment" as defined by ADA regulations. The more difficult question is whether Valle's impairment substantially limits a "major life activity." Major life activities are basic life functions, including working. The distinguishing characteristics of major life activities are that they are activities that the average person can perform with little or no difficulty. Thus at first glance it would seem that heavy physical exertion cannot be a major life activity because it is difficult by its very nature. The mere fact that Valle's impairment may prevent him from working as a Chicago police officer does not establish that his ability to work is substantially limited. Failure to perform heavy physical exertion would appear to be sufficiently broad to constitute a substantial limitation on Valle's ability to work as a wide range of jobs require such exertion. The police department counters that Valle is not otherwise qualified to serve as a police officer. The police department reasons that because it requires all probationary officers to run 1.5 miles within a specified time, this requirement is an essential function of the job. Under ADA, qualified individuals with disabilities are those who can perform essential functions of the position. The 1.5 mile run, however, has to be considered a threshold requirement, not an essential function. Once the test is passed, employees are no longer required to

HELD: The appropriate standard of review of an administrative agency decision is to determine whether the findings are against the manifest weight of the evidence. Because the weight of the evidence and the credibility of the witnesses are uniquely within the province of the administrative agency, there need only be some competent evidence in the record to support its findings. At the hearing, Haynes admitted that had he refused to take the psychological examination and refused to sign a form listing his administrative rights. His refusal was apparently based on a belief that the order to take the examination was improper. Haynes' refusal to obey a direct order was not justified by his

HELD: Age discrimination can take one of two forms: intentional discrimination or discrimination through a facially neutral procedure that produces adverse impact. To establish intentional discrimination a plaintiff must show he is a member of a protected class and is qualified for the position sought but was denied the position while others of similar or lesser qualifications achieved it. Here, the officers have simply failed to establish that they were qualified and that persons of lesser qualifications were promoted. The complaining officers do not attack the validity of the examination or the testing process. In fact, the awarding of seniority points may actually have produced a higher score for the aggrieved officers. As to a claim that the process produced unlawful adverse impact, the township produced persuasive evidence at trial of the importance of higher education for police officers. The township presented proof as to the job-relatedness of education. Additionally, since 1931 various national commissions that examined the justice system have urged higher educational standards for police officers. The unsuccessful police officers have failed to establish that their age was directly or indirectly the reason they were not promoted to sergeant. Affirmed for township. [Esposito v. Township of Edison, 703 A.2d 674 (N.J. Super. A.D. 1997)]

HELD: Modified duty exists as an assignment pending determination of fitness for duty. A police officer on modified duty surrenders her badge, firearm, and identification card. The officer is prohibited from engaging in police enforcement activities. Garcia claims, however, that city civil service rules specifically exclude from the definition of the probationary period, sick leave, annual leave, and limited duty status but are silent as to modified duty. Thus, she asserts modified duty should be counted toward her probationary period. She is in error. The purpose of the probationary period of a police officer is to ascertain the officer's fitness and give the officer a reasonable opportunity to demonstrate the ability to perform the duties of the office. Since a police officer assigned to modified duty is barred from exercising police authority, the employer is denied the opportunity to assess fitness. Garcia was placed on modified duty with full salary. She could have been terminated at that time. It would be illogical in the extreme to require the police department to afford Garcia a hearing now because it chose to proceed cautiously in the internal investigation when it could have dismissed her without a hearing at the time of the incident. Dismissal of officer affirmed. [Garcia v. Bratton, 688 N.E.2d 495 (N.Y. 1997)]

HELD: The officers assert that their age-conversion rights were vested when they first became members of the retirement system. This position is correct. For over 50 years Wisconsin statues have provided that "annuities and all other benefits" of Milwaukee officers are obligations of the city and each member of the retirement plan "shall have a vested right" to the benefits. Local law cannot alter this right. Crime crosses municipal boundaries. Effective law enforcement and attraction of qualified personnel to serve as police officers is a matter of statewide concern. Assuring that duty disability benefits will not be changed without their consent helps attract qualified officers and thus is an important component of legitimate state policy. The city counters that the conversion-age reductions were in a large measure the result of collective bargaining agreed to by the police union in exchange for other benefits. Thus, the city contends it is unfair to let the officers have their cake (bargained for benefits) and eat it too (vested retirement rights). This argument ignores the legal principle that a union may not bargain away vested rights of its members without the express consent of those members. No evidence exists in the record to indicate that the officers consented to any modification of their vested rights. Affirmed for officers. [Welter v. City of Milwaukee, 971 N.W.2d 459 (Wis. App. 1997)]