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August 8, 2007
Firefighters File Sexual Harassment Claims Over Being Forced to Attend Gay Pride Parade
Fox News brings word of an interesting lawsuit about to be brought in California. In it, four San Diego firefighters allege that they were required to attend a gay pride parade as part of their duties. They then claim that they suffered severe sexual harassment:
[Fire Capt. John] Ghiotto and three other firefighters filed a sexual harassment complaint against the city's fire department last week after being forced to attend the parade in uniform despite objections they made to superiors.
“I don’t want anybody else to go through this. This is a whole different ball game. I think our officials up above need to look at this,” Ghiotto said.The firefighters claim parade attendees made obscene gestures, uttered inappropriate remarks and displayed lewd behavior that made them uncomfortable . . . .
“You could not even look at the crowd without getting some type of sexual gesture,” Ghiotto said in the complaint. “The experience left me feeling humiliated, embarrassed and offended by this event.”
The case has some interesting twists because the fire chief of San Diego is a lesbian (and has already apologized for the harassment the firefighters suffered). One also senses, however, that there is quite a bit of homophobia going on here. Here's Ghiotto again:
"I've dealt with finding bodies in burning buildings, traffic accidents with kids, but I've never been so stressed out before until this incident," Ghiotto told FOXNews.com in an exclusive interview.
Another one of the firefighters in his charge of discrimination:
“While I was sitting there waiting for the parade to start, I felt that I was forced against my will to be at the Gay Pride Parade and forced to see men in tight shorts dancing provocatively and other men kissing and hugging wearing sexually suggestive material on T-shirts with writing 'Girth and Mirth,' 'Suit Up Before You Dive In,' according to the complaint.
“I was forced into a situation that would compromise what I hold true and what I believe in, my reputation, my character, my integrity, my morals, and my religion," the complaint says.
So burned bodies OK, but taunts from homosexuals, no? Is this really a religious accommodation case (though religious discrimination is not claimed)? After all, the Thomas More Law Center, a religious conservative legal group, is representing the firefighters
As far as whether the lawsuit has a chance, there are a number of problems, ranging from the fact that the one incident might not be considered severe or pervasive enough to the issue of whether a reasonable person would have found the conduct created a hostile work environment.
There are also issues about whether they were harassed "because of their sex" or "because of their sexual orientation." In other words, are they claiming stereotype discrimination? If the harassment was based on the firefighters sexual orientation, it is not covered under federal law, but may be covered under California law - a so-called reverse sexual orientation harassment case. My good friend Zak Kramer (Arkansas-Little Rock) may be happy to know that there may be indeed heterosexual discrimination claims after all.
Finally, on the vicarious liability issue, doesn't this come under the Faragher/Ellerth affirmative defense since the firefighters did not suffer a tangible adverse employment decision? And didn't the fire chief already respond reasonably with corrective action by apologizing and pledging not to put them in that situation again? Must the corrective action be a formal change in policy saying that firefighters need not go to parades they do not want to attend?
Here is a copy of the charges of discrimination filed with the California Department of Fair Employment and Housing.
Hat Tip: Marc Harrold
PS
August 8, 2007 in Employment Discrimination | Permalink
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Comments
Why should we think that it is "homophobia" for a person to complain about being compelled by his governmental employer to participate in a parade celebrating a morally controversial sexual lifestyle and political agenda? Suppose the shoe were on the other foot, and a gay fireman were compelled to attend a parade celebrating Defense of Marriage laws? Guilty of some phobia if he or she objects?
Or suppose women firefighters were compelled to attend a "Hooters Pride" parade celebrating the sexual mores of Hooters restaurant and its customers? Imagine women fire fighters being asked by the crowd to flash their "hydrants" or to demonstrate their skills on the fire hose? Should their employer require them to submit to such crudity? If they complain, are their phobic?
It is one thing to require fire fighters to participate in non-ideological "founders day" parades, but quite another thing to compel government employees to affirm or to appear to affirm (by marching in a parade)their support for controversial moral and ideological causes.
Posted by: Prof. Rick Duncan | Aug 8, 2007 12:54:19 PM
Same-sex sexual harassment cases brought by men are quite common in California. I conducted a study of California employment law verdicts for the years 1998 & 1999 (See 37 UC Davis L Rev 511 (2003)) in which I reported that of the 272 reported employment discrimination verdicts, 90 were sexual harassment cases, including 8 same-sex sexual harassment cases brought by men. The plaintiffs won all 8 cases, with a median verdict of $166,000.
Posted by: David Oppenheimer | Aug 8, 2007 2:24:31 PM
Rick, thanks for the comments, but I think your comments prove my point: this is really not about heterosexual discrimination, but about religious discrimination.
And so people know where you are coming from, and this is in the public record, you have previously stated that, "This is why some of us fight so hard against gay rights and gay marriage — gay rights/marriage are incompatible (at least in certain situations) with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights."
And so, I see your comments as just another iteration of that argument (which I, a secular elite, disagree with): that gay rights and religious liberty are incompatible.
Posted by: Paul M. Secunda | Aug 8, 2007 2:30:54 PM
Rick:
Even accepting all you say, is this sexual harassment? One parade's worth of activity -- even at the level alleged -- wouldn't constitute a hostile work environment under the Title VII cases I know. Is California law different?
Posted by: Joseph Slater | Aug 8, 2007 2:58:15 PM
Of course Paul is correct that there may well be a religious liberty issue here (as well as a free speech/ right to not be compelled to affirm a belief issue) depending upon the religious and or secular beliefs of the firemen. I don't know what their religious beliefs are so I can't be sure.
But just because there may be 1A claims as well (I am not asserting that their 1A claims are winners, just that they may well have legitimate claims to make), does not mean that they don't also have a sexual harassment claim based upon the kind of crude sexual expression they were subjected to.
Does Paul agree that women fire fighters, required to participate in a "Hooters Pride" parade and who are then subjected to unwanted, explicit sexual taunts by the parade audience, may have a valid sexual harassment claim? Notice these women fire fighters might also have religious objections to being the target of crude sexual taunts, but that would not lessen any claim that they might have about sexual harassment. Or would it?
Posted by: Prof. Rick Duncan | Aug 8, 2007 4:02:47 PM
The shorter answer is that even if there was a Hooters pride parade, which of course there isn't, one parade as Joe points out, is highly unlikely to make out a sexual harassment claim.
Also, FWIW, I doubt there would be a 1st Amendment speech/expression/association claim under Pickering because there is no tangible adverse action taken against the fire fighters. On the 1st Amendment religious claim, the requirement to attend is generally applicable and presumably OK under City of Hialeah.
Posted by: Paul M. Secunda | Aug 8, 2007 4:34:46 PM
Excuse a very stupid question, but why are firefighters required to attend any kind of a parade as part of their duties? Are they also required to attend the St. Patrick's Day parade? Why? Do fires often get started at parades?
Posted by: John Mouser | Aug 8, 2007 6:24:40 PM
John, not a stupid question at all. We have been focusing on the sexual harassment complaint, but there are also potential constitutional issues involved concerning expression, association, religion, and the violation of liberty interests.
Unfortunately for the firefighters in this case, the constitutional claims do not look good as I explained in my previous comment. The employer argument might be that the firefighters' job includes representing the city in various civic functions like parades. I know this is might sound far-fetched, but courts have upheld public employers' rights to interfere with their employees' lives in even much more attenuated circumstances.
Posted by: Paul M. Secunda | Aug 8, 2007 6:38:24 PM
Here is a 1A claim that may be a little different from the typical employee free speech claim.
May a government employer compel its employees to affirm their support for a controversial political cause? For example, could the fire department decide that it would be a good civic function to require all its employees to affirm their support for a controversial political cause such as gay pride and gay rights.The department might want to earn some good will in the gay community by requiring such an affirmation, just as it earns good will by showing up at various community functions.
Restricting employees' on-the-job speech is one thing; compelling employees to affirm their support for a controversial political and moral cause is quite another thing.
If the government may not compel its employees to directly affirm such an ideological belief, I would argue that requiring its employees to march in a parade that exists for the very purpose of expressing support for a political cause similarly amounts to a compelled affirmation of belief.
And by the way, I write about Free Exercise extensively and I don't think the issue is as easy as Paul makes it out to be. I can imagine some facts that might turn up as the case develops that would provide a reasonably strong basis for a Free Ex claim.
Posted by: Rick Duncan | Aug 8, 2007 10:57:27 PM
I continue to think the First Am. issue here is more interesting than the sexual harassment issue -- unless the California law has a much broader definition of hostile work environment law than Title VII.
Posted by: Joseph Slater | Aug 9, 2007 9:22:46 AM
I haven't read the complaint yet. (I will try to do so shortly.) But it seems essential to this discussion to know the actual facts first. That is, it had never occurred to me that the firefighters were there because they were being asked to *march* in the parade. That would seem bizarre to me. (It would also raise more serious issues for me -- we all know the FA rights of public employees have been seriously curtailed recently by the Court, but I think that decision was poorly decided.)
In any event, I assumed they were there -- in the way I have always seen police (although not usually firefighters) deployed at any parade -- to provide security if needed. People at gay rights parades are used to seeing police along the sidelines and they never assume those folks are gay people dressed up as policemen or policewomen.
It might be that, in this case, San Diego decided to use firefighters as well as police; that a bunch of the parade goers thought the firefighters looked "hot" (so to speak); maybe they also assumed they were gay or gay friendly; and so they came on to them sexually. It's the type of thing that most gay firefighters would not ave minded at all, but a straight firefighter (and certainly a homophobic one, dear god) would have been appalled by.
So, assuming these facts -- I could certainly see why the police chief would apologize to these particular firefighters and ensure that they wouldn't be placed on this particular detail again. But -- I certainly don't think it rises to a viable claim of sexual harassment, given the one-time nature of the event. And -- on the FA or religion claim -- in cases in which a police or fire person is asked to simply attend a parade to provide security (be it a gay rights parade, a Hooters parade, or a KKK parade), I think the burden on the person's belief liberty (as I describe both religious and non-religious beliefs of this kind in a recent Brooklyn Law Review article) is legitimately outweighed by the state's interest in providing security at such parades.
Chai Feldblum
Posted by: Chai Feldblum | Aug 9, 2007 11:53:34 AM
Chai, as I read the complaints, the fire fighters were required to actually participate in the parade--i.e. the department sent a fire engine and its crew to actually march (or drive) as a participant in the parade. Fire fighters were apparently expected to wave to the audience and smile as would any willing parade participant.
So they were not there to put out a fire or to provide security, but to actually take part in a parade (the purpose of which parade being to celebrate gay pride and gay rights).
In term of this being a one time thing, in fact the fire department has in the past on several occasions participated in the parade (although this may have been the first time non-volunteers were required to attend).
Why would the fire department choose to march in the gay pride parade? As I think Paul suggested, the department participates in this and other parades as a kind of civic function probably designed to earn good will for the department in the various subcommunities of the city.
Posted by: Prof. Rick Duncan | Aug 9, 2007 4:23:22 PM
Chai:
I read the complaint, and although it's not 100% clear to me even after reading, the firefighters seem to be alleging that they were ordered to participate in the march not just in a security role (keeping the streets safe and secure), but as something like marchers.
Of course I don't know what actually happened. And I agree with you that if they were merely assigned for security/safety reasons, there's no claim of any kind.
But taking their allegations as true, assuming I understand them correctly, that makes it a different type of case. I still don't think they have a sexual harassment claim, but there are some interesting First Am. issues.
Posted by: Joseph Slater | Aug 9, 2007 4:55:58 PM
8/10/07
Ok, I just finally had a chance to read the complaint.
Oy!!
I understand that the fire department sends these trucks to some parades as a civic gesture -- but I think if they do that, it should be only with volunteers. (Of course, maybe this will cause the city to rethink its policy of sending its trucks.)
But really, in San Diego -- you would think they would have gotten a few gay or gay-allied firefighters who would have been happy to attend and drive the truck.
I think a sexual harassment complaint has no weight. I (personally) would rule in favor of the firefighters on a FA claim (that is, I would find that forcing them to participate in the parade is a burden on their belief liberty that is not outweighed by the government interest here.) But my view of the FA liberty interest has certainly not been adopted by the Supreme Court. So, given the current caselaw, I'm not sure how well these folks would fare.
It's interesting -- at the Lavendar Law conference this year, there is going to be a plenary session and a series of workshops focused on FA issues, religious and other beliefs and gay rights. Maybe I'll see what the audience thinks about this incident.
In any event, I am very glad that the San Diego chief apologized and that it won't happen again. And, mostly, I look forward to the day when there will be many, many firefighters (gay and straight) who will be HAPPY to spend some of their work hours riding in the parade!
Posted by: Chai Feldblum | Aug 10, 2007 7:30:55 PM
