The Legal Framework of Personnel Management
This portion of the module addresses the legal framework for personnel management. From there, we will look at the necessary background for staffing, recruitment, selection, promotion, and human resource training and development.
We have commented on this before: emergency service personnel management does not take place in a vacuum. It takes place in a society which values equal employment opportunity in its fullest sense. The four areas we are going to examine are: equal employment opportunity, affirmative action, sexual harassment, and the Americans with Disabilities Act. You'll also be learning about legislation, executive orders, and various court cases involving issues related to these areas.
Now, you may not remember all the cases by name or by date, but do remember the essence of the findings, as these decisions have become an integral part of personnel management.
Equal Employment Opportunity
The premise of the Equal Employment Opportunity (EEO) concept is that there is to be no discrimination in employment decision issues on the basis of non-job related characteristics or conditions. Its purpose is to protect individual rights and the individual's inalienable right to pursue career choice(s).
EEO proper represents a system of employment practices under which individuals are not excluded from any participation or advancement or benefits because of their race, color, religion, sex, national origin, age, disability or other factor which cannot legally be considered as the basis for employment actions.
Affirmative Action
The essential premise of affirmative action is that employers must take positive steps to ensure that the employment of applicants and treatment of workers is without regard to non-job related characteristics including race, color, religion, sex, and national origin. Typically, affirmative action entails specific actions taken in the recruitment, hiring, promoting, etc. of applicants/employees designed and taken to correct the effects of past discrimination. It is a set of specific and results oriented procedures to which an employer commits and toward which he/she applies a good faith effort.
The affirmative action concept came into legal existence via an Executive Order. It applies to contractors and subcontractors with federal contracts or $10,000 or more. Contractors with contracts of more than $50,000 must write an affirmative action plan.
As mentioned, there are numerous pieces of legislation and dozens of court cases that have addressed these principles.
Edwards (2005) comments further on these concepts and identifies the most pertinent legislation and court cases regarding equal employment opportunity.
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Sexual Harassment and Workplace Discrimination
Another legal area of concern is sexual harassment and workplace discrimination. You've already been introduced to some of the court cases regarding this topic. Sexual harassment and workplace discrimination are against the law.
This presents some unique challenges to those in the emergency service and specifically to those who are on duty 24 hours a day at a time. They live, eat, work, and sleep in the confines of the same station. They become "family," with all the inherent camaraderie and teasing that can be found in "families." The question can become: is the teasing indicative of camaraderie or is it harassment?
This of course also raises the question of acceptance. In the emergency service it is not uncommon for a "rookie" to know he or she is accepted when he or she is the victim of practical jokes. Is this "a joke" or could this be harassment?
Before we answer the above questions, let's look at the legal definitions of sexual harassment from the The U.S. Equal Employment Opportunity Commission at http://www.eeoc.gov/facts/fs-sex.html.
Forms of Sexual Harassment
There are two types of sexual harassment: Quid Pro Quo and Hostile Work Environment.
Quid Pro Quo Harassment
Quid Pro Quo harassment is the type of harassment which occurs when in fact when submission to unwelcome sexual advances or requests for sexual favors is in fact made explicitly or implicitly a condition of the person's employment, promotion, favorable performance evaluation, training opportunities or any other employment decision issue.
Examples:
"If you'll go out with me tomorrow night , I'll make sure you make probation."
"You know, if we could get together at my place and have some fun, I could make sure you do well at the orals board."
In the above examples, the implication is that the aggressor is in a higher level, supervisory or management position..
Hostile Environment
While there is still quid pro quo harassment in the workplace, there are likely more problems with the hostile environment issue. Some examples of behaviors which could well create a hostile environment charge would include, "cat calls" and whistling (obviously at a particular person), unwanted touches, kisses, hugging, deliberate "bumping," and other personal sexual attention; checking out the person's body visually (vs eye contact); teasing or joking (with a sexual innuendo); referring to someone in derogatory, vulgar, or sexual terms; and the posting of graphic or violent pornography in the workplace.
While no one wants to censor the books and magazines on the table or the movies on television, if they have sexual overtones or graphic pictures or scenes their being there or their being viewed might well create a hostile environment. These examples are just but a few of the types of behaviors that can potentially result in sexual harassment / hostile work environment charges.
While no one wants to censor the books and magazines on the table or the movies on television, if they have sexual overtones or graphic pictures or scenes their being there or their being viewed might well create a hostile environment. These examples are just but a few of the types of behaviors that can potentially result in sexual harassment / hostile work environment charges.
Third Party Harassment
There is one other point worth mentioning, third party harassment. This occurs when the language or behavior of co-workers causes an uninvolved party to be offended. For instance, if two co-workers were in the lounge and talking quite candidly about their respective dates and used fairly descriptive and inappropriate references to the individuals or their behaviors, someone else sitting in the lounge might well be offended.
Legal Implications
As stated earlier, sexual harassment and workplace discrimination are against the law. Employers are accountable when it comes to sexual harassment and discrimination complaints. Employers are held totally liable for the acts of supervisors whether or not they "knew" of the act. Employers are held accountable for acts of co-workers if the employer knew or should have known about the acts. Employers may be held accountable for the acts committed by non employees (such as visitors, delivery persons, etc.) in the work place.
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Impact vs Intent
One of the most difficult quagmires surrounding the question "What constitutes sexual harassment?" is the issue of intent vs. impact. An alleged harasser may not have "intended" what he /she said or did to be harassment; however, if the victim perceives it as harassment, it may be harassment.
It is the impact, not the intent, which determines harassment.
Barring quid pro quo harassment, often one utterance, one whistle, one joke will not be construed as harassment or discrimination. Some of the key issues associated with harassment have been severity, frequency, duration, intensity, and kind.
The best policy: Don't engage in ANY behavior nor permit your people to engage in any behavior which could be construed as harassment nor allow such behavior on the part of your subordinates even on a one time basis.
Edwards (2005) provides some guidance by addressing steps you need to take to prevent sexual harassment. As you read your assignment, be sure to reflect on his suggestions. You may want to revisit them on more than one occasion.
I'd like to emphasize one more issue regarding sexual harassment: Do something about it. Every agency must have a process for filing a complaint. When a complaint is filed, the first priority of the officer or designated individual is to act upon it. As a supervisor or manager, you must be prepared to respond appropriately to both complaints/allegations and confirmed incidents.
The supervisor or designated agency representative, at minimum, must conduct a careful and thorough interview with the complainant, those who are believed to have direct knowledge of the incident (such as known witnesses), the alleged "harasser," and those he or she might identify as having knowledge of the incident. The investigating officer should consult with management and/or the human resources department to determine what action should and will be taken.
Who specifically should be consulted depends upon the agency's procedure and protocol. Document your investigation.
It is absolutely essential that supervisors act promptly and appropriately upon receipt of a sexual harassment complaint or upon the discovery of any type of conduct which would likely be construed as sexual harassment (quid pro quo or hostile work environment). The courts have consistently held employers liable for the actions of their employees, particularly if the harassment is not immediately remedied upon notification.
The same attention should be afforded to those with allegations of any type of workplace discrimination or harassment. There should be no derogatory teasing or even "innocent" joking about any race, culture, nationality or physical stature. Now, let's revisit the initial two observations regarding teasing and jokes. My recommendation: Avoid any scenarios in which a person could be made to feel a target of any kind of harassment or discrimination. While the teasing or the joking may not be of a sexual or erotic nature, it is best just not to do it.
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Americans with Disabilities Act
The Americans with Disabilities Act (ADA) essentially seeks to provide equal employment opportunity to individuals with disabilities along with equal access to facilities and so forth. Our focus at this juncture is on the equal employment opportunity component.
This is an area somewhat new to emergency services and especially to the fire services. Whether or not an applicant with a disability might be a viable candidate – and even be perhaps the best qualified – is going to depend in part on the structure and documented practices of the agency.
In a smaller department in which all fire suppression personnel essentially do only suppression or do "everything" such as inspections, prevention, public education, etc. and promotion is totally internal, hiring someone with a disability may not be feasible and accommodating this individual may create an "undue hardship."
However, for those larger departments where there is substantial specialization, the use of civilian personnel in some arenas, and/or lateral entry into certain positions, the ADA and reasonable accommodation may become very important factors.
You may be wondering what an "undue hardship" might be, how it would be determined, and so forth. The reality is that it needs to be examined on virtually a case by case basis. There are no cut and dried criteria.
As Edwards (2005) points out, "Even though employment in the fire and rescue service has high physical and medical requirements due to the nature of emergency service work, fire departments are being increasingly challenged to include more individuals with disabilities into the fire service work environment."
I want to comment on one other aspect of the ADA discussion before you continue your reading: performance of "the essential functions of the job."
"A qualified individual with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job" (Edwards, 2005).
The phrase "essential functions" is important. The point is, a candidate may not necessarily be able to perform all functions and still needs to be considered a viable candidate. He/she must be able to perform the "essential functions" of the job. As you review and write job descriptions, you need to identify those determined to be "essential."
One quick example is in order. Let's talk about a civilian dispatcher. His/her primary duties (essential functions) are to take and dispatch calls (and I do appreciate it is more complex than that!). The fact that on occasion he/she delivers mail to the second floor (no elevator) is not likely to make this an essential function. Hence, for the position of dispatcher a qualified individual with a mobility disability (confined to a wheel chair) is a viable candidate.
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Relationship with Legal Counsel
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References
Edwards, S. Fire Service Personnel Management. 2nd ed. Upper Saddle River, N.J: Pearson Education, 2005.
FESHE Course: Personnel Management for the Fire and Emergency Services, Version 1.0, Winter 2007©
Page last updated:
November 16, 2007