History repeats itself in the fire service on a daily basis. I not referring to the frequency of jobs involving fire, EMS and rescues, but about the human interaction that is continues to disrupt the daily lives of our firefighters who are different. The fire service continues to discriminate against women firefighters unabated. In Davie Florida, the Justice Department recently reached a consent decree agreement with the town of Davie, Florida, to resolve allegations that the Davie Fire Department discriminated against firefighter/paramedics because of their pregnancy and retaliated against another firefighter/paramedic because she complained about gender discrimination. (United States v. Town of Davie S.D. Fla. 0:15-cv 60395, proposed consent decree[1]).
The consent decree resolves allegations of disparate treatment [2] based on light duty policies for pregnant female firefighter/paramedics implemented by the Davie Fire Department. In a 2012 case, the Department of Justice challenged those discriminatory light duty policies in a Title VII case stemming from a complaint of similar patterns and practice of discrimination, which resulted in a consent decree to resolve the case. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, sex, national origin and religion. The consent decree entered by the U.S. District Court for the Southern District of Florida required that the fire department abandon its existing discriminatory light duty policies and adopt new, non-discriminatory policies. This second complaint is the result of individual charges of discrimination referred to the Justice Department by the Equal Employment Opportunity Commission. As alleged by the Justice Department in this complaint, the firefighter worked for the Davie Fire Department under its prior policies and was adversely affected by those policies which were implemented in violation of Title VII.
The firefighters’ allegations stated that the pregnant firefighter’s doctor wanted her on light duty during her pregnancy. The fire department’s policy, however, would not allow her light duty during her first trimester. She continued to work and eventually was required to fight a fire during her pregnancy and suffered a miscarriage after doing so.
The complaint also alleges that another woman firefighter complained about other policies and practices at the fire department that she reasonably believed discriminated against female firefighters. After she complained about the discriminatory treatment, the fire department responded to her complaints by taking adverse actions against her designed to discourage similar complaints. She was forced to undertake a “re-acclimation process” before returning to full duty from a light duty assignment due to an on-the-job injury. This is defined as retaliation and is defined under the law preventing an employer from terminating, demoting, harassing or otherwise “retaliating” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. [3]
Under Title VII, discrimination based on sex includes discrimination due to pregnancy, and requires that women affected by pregnancy be treated the same as other employees who are similar in their ability or inability to work. Under federal law, an employer may not retaliate (take adverse action) against employees because they complain about discrimination based on sex.
The consent decree, filed simultaneously with the complaint in U.S. District Court for the Southern District of Florida must still be approved by the federal court. Under the terms of the agreement, the fire department must review and adopt appropriate anti-retaliation policies to protect its employees from further violations of Title VII and conduct training of its personnel to ensure that they properly handle future complaints under Title VII.
The fire department must also pay monetary awards to compensate the women firefighters, and two other similarly-situated, pregnant firefighters in an amount exceeding $400,000. [4]
A consent decree is an agreement or settlement to resolve a dispute between two parties without admission of guilt and these are the most often types of settlement in the United States. Many times there is a court appointed administrator to monitor and ensure the court mandated agreement is put into place and enforced. There are many consent decrees affecting fire departments across the country related to hiring practices affecting several fire departments including: FDNY, Baltimore, Austin, San Francisco and a consent decree affected Leesville, Louisiana which had gone on over 32 years for hiring practices violating Title VII of the Civil Rights Act of 1964 [5] and probably the longest is a forty year consent decree involving the City of Buffalo (NY). The City is requesting a 1974, the US Department of Justice consent decree be set aside after complying with the consent decree related to mandated hiring quotas overseen by a US District Court judge.
Women firefighters are important part of a proud tradition in the fire service since 1815. Currently there are about 6,700 women firefighters out of 345,950 career firefighters. Women firefighters continue to struggle to gain acceptance in their chosen profession with a number of lawsuits brought by women firefighters against their departments. Litigation related to discrimination in the fire service is only the tip of the iceberg of the reported discriminatory action undertaken by firefighters, fire officers and even fire chiefs involving women firefighters.
The fire service represents a cross section of our culture. There are numerous laws generated and passed to protect, women, minorities, religious beliefs and freedoms, age, certain disabilities, gender beliefs and lifestyles and our military veterans. Every day the fire service appears to violate those very laws designed to protect those covered under the law. Claims based on the violations are costing fire departments millions of dollars every year and ruins careers and dreams of those chosen to become firefighters.
As Fire Chiefs and fire officers we must be aware of all of the federal regulations and laws affecting our employees. An important one for us to understand is Title VII which prohibits employment discrimination based on race, color, religion, sex and national origin. There are amendments to this Act and numerous states protect their employees with laws and ordinances that provide even greater protection from discrimination. In the Davie (Fla) case, the regulation that was not applied was the application of a light duty benefit to pregnant employees. Under the Pregnancy Discrimination Act (PDA), the discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The PDA forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
In general the decision to continue to work is the decision between the firefighter and her physician. Some departments provide a job description to the physician when a firefighter becomes pregnant so the physician is aware of the potential hazards facing all firefighters. Pregnant firefighters have remained on the job until the third trimester without a hazard to the fetus or mother. Some firefighters will go on light duty right away after learning of their pregnancy until the delivery of the child; then after a period of maternity leave, the firefighter can return to work after clearance from her physician.
Another important (among several important laws affecting your firefighters) is the disability may be claimed under the Americans with Disability Act (ADA). Under the ADA, the employer may have to provide a reasonable accommodation such as leave or modifications that enable an employee to perform her job for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.[6] [7]
There are these and many more laws affecting your departments and your employees. Fire Chief’s and their staff must have a working knowledge of those laws affecting all of your employees and must have up to date policies and procedures in place related to these laws. It is not merely enough to have these policies and procedures but departments must regularly train your staff on those policies and procedures addressing the various aspects of the laws affecting your fire department.
JOHN K. MURPHY, JD, MS, PA-C, EFO retired as a Deputy Fire Chief after 32 years of career service; is a practicing attorney licensed in Washington and New York, whose focus is employment practices liability, fire and EMS training safety, employment policy and practices, forensic evaluation on fire operations, internal investigations, expert witness and attorney litigation support and consulting on risk management for private and public entities.
[1] See http://www.justice.gov/usao/fls/PressReleases/Attachments/150226-01-DavieConsentDecree.pdf
[2] For additional information see: http://legal-dictionary.thefreedictionary.com/Disparate+Impact
[3] See http://www.eeoc.gov/policy/docs/retal.html#IIpartB
[4] http://www.justice.gov/opa/pr/justice-department-settles-second-pregnancy-discrimination-lawsuit-against-davie-florida-fire
[5] http://www.eeoc.gov/laws/statutes/titlevii.cfm
[6] See http://www.eeoc.gov/laws/types/disability.cfm
[7] see http://www.eeoc.gov/laws/types/disability_regulations.cfm