Attorneys running your fire department

There is a fifth dimension beyond that which is known to man. It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man's fears and the summit of his knowledge. This is the dimension of imagination. Imagine a fire service world where attorneys or judges are running your fire department.  It is an area which we call the Twilight Zone.¹

Sounds horrible doesn’t it? You would have to “hire right”, have enforceable policies, have to train on those policies, you would have to comply with ALL of the federal laws related to your firefighters to include all of the provisions of Title VII of the Civil Rights Act of 1964 (Act) ², which include anti-discrimination and anti-retaliation, have to comply with mandates related to age, disability, gender,  religion, pay, medical leave, pregnant firefighters, disabled firefighters, terminating firefighters, and other rights enjoyed by your firefighters under the law and you would have to run this action by an assigned monitor (judge or attorney) assigned to your department to enforce those mandates placed on your department by the Department of Justice.

A recent Department of Justice consent decree applies these very principles affecting the Davie Fire Department (Fl.) in a recent decision between the Department of Justice and the Department. The issue in this case was the discriminatory practice related to the provision of a light duty benefit to pregnant firefighters and retaliation by the department against another firefighter who complained of the discriminatory action towards women firefighters in this department. ³

I have written several articles related to women firefighters and it appears the pattern and practice of discriminatory action continues, not that I would expect everyone reads my articles, but a prudent fire service leader would at least respect the law and the firefighters who work for them.

 Title VII Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Act also enforces the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs. The Act also created the EEOC Equal Employment Opportunity Commission ⁴ which is essentially the enforcement arm of the Act. This Act has also been amended to prohibit sex discrimination on the basis of pregnancy and other issues affecting employees and access to jobs and public facilities.

There are a number of sections contained in the Act pertaining to the duties of employers and the rights of employees due to the individual’s race, color, religion, sex, or national origin. As an example, it is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. The Act prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Employers should adopt "best practices" to reduce the likelihood of discrimination and to address impediments to equal employment opportunity. ⁵

The agency tasked to investigate your organization after an EEOC complaint is the Department of Justice (DOJ whose mission is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. Most often the settlement between department violating the tenants in the Act and the Department of Justice is found in a consent decree. A consent decree is an agreement or settlement to resolve a dispute between two parties without admission of guilt and most often refers to such a type of settlement in the United States.

In cases affecting the fire service and other public safety entities including the police, the plaintiff and the defendant ask the court to enter into their agreement, and the court maintains supervision over the implementation of the decree in monetary exchanges or restructured interactions between parties. There are many fire and police departments that are operating under a consent decree to include: Seattle Police Department (excessive force and discrimination), New Orleans Police Department (pattern of civil rights violations and other misconduct by the New Orleans Police Department), Davie Fire Department (light duty and retaliation), Austin Fire Department (hiring), FDNY and Chicago (hiring), City of San Francisco (hiring) Baltimore Fire (Title I of the Americans with Disabilities Act of 1990). Some consent decrees have been administrated for years to include a department in Leesville, Louisiana for the past 32 years and recently resolved and one fire department has petitioned the court to release them from a consent decree that has been in place for over forty years.

There is a solution to the nightmarish Twilight Zone potential where attorneys or judges are managing certain elements of your department is to follow the law, treat ALL employees equally under the law, read and understand the Civil Rights Act of 1964 and its various amendments, and know the word salad and terms of art of ADA, EEOC, ADEA, PDA, FMLA, FLSA and many more affecting your department.

Please attend and listen to the Fire Service Attorneys (Pinsky, Comstock, Varone and Murphy) and other great speakers at the upcoming FDIC in Indianapolis April 20 – 25, 2015. See you all there.

Endnotes:

1. Rod Sterling, Twilight Zone. CBS Productions 1959

2.  http://www.eeoc.gov/laws/statutes/titlevii.cfm

3. See http://www.justice.gov/opa/pr/justice-department-settles-second-pregnancy-discrimination-lawsuit-against-davie-florida-fire

4. http://www.eeoc.gov/laws/statutes/titlevii.cfm

5. http://www.shrm.org/legalissues/federalresources/federalstatutesregulationsandguidanc/pages/titleviiofthecivilrightsactof1964.aspx#sthash.YTxcGpIy.dpuf

John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio and a national speaker on fire service legal issues.

For more information please contact me at 206-940-6502 or at john@murphylawgroup.org