Nan Hunter

The dangers of sexual harassment law reflected in verdict for firefighters

Filed By Nan Hunter | February 19, 2009 11:00 AM | comments

Filed in: Politics
Tags: firefighters, gay pride, San Diego, sexual harassment, Tracy Jarman

Four San Diego firefighters have won a sexual harassment suit based on a claim that being ordered to represent the department by participating in a gay pride parade led to catcalls directed at them and their being forced to watch gay men simulate sex acts. It's a verdict that trivializes the kind of at-work quasi-terrorism that can constitute sexual harassment, but also one that illustrates the danger of how easily sexual stigma can be manipulated.

The San Diego story is a small battle in an ongoing sex/gender/culture war, not only in the broader society, but also doubtless in this particular fire department, where the chief, Tracy Jarman, is openly lesbian. Jarman did not order the group to participate after they objected, so the suit was not directly aimed at her. But it's hard to believe that the four guys who brought this suit feel really comfortable with a gay female boss.

The case represents the danger from open-ended sexual harassment law, creating an invitation for suits such as this one, which Harvard Law School Professor Janet Halley described as "sexuality harassment" litigation. The sexualized nature of the harm is used to magnify an unimportant event into a serious injury. In effect, sexual harassment law is being used here to recuperate the idea behind the old gay panic defense to assault or even murder, that extreme over-reaction to same-sex sexual propositions (or in this case, simply speech) is justifiable. It's a double standard with a vengeance.

The men were never touched or threatened during the parade, but complained that as they drove the route in a firetruck, bystanders called out such phrases as "you can put out my fire" and "show me your hose," as well as sexual gestures. They also asserted violations of their rights of religious liberty and free expression, stating that being forced to participate in a parade communicated endorsement of activities that offended their religious beliefs. After the parade, the city adopted a policy of asking only volunteers to participate in these events.

I think the fact that it was a parade - an intrinsically expressive act - makes the decision not to allow them to decline troublesome. On the law, however, when people work in government service, I think that the mission of serving the public trumps their personal beliefs about any group within the public. The trial court dismissed the constitutional claims asserted by the four firefighters.

But the case went to trial on the sexual harassment theory. The idea that what they experienced on one summer day in 2007, riding together in a truck, amounted to a hostile work environment, ie one characterized by pervasive and severe harassment, is ridiculous.

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I definitely get frustrated at the extremes that some of this area of law has taken us. When working at a queer student group, all student group leaders underwent a sexual harassment training, in which we were told never to ask, disclose, or discuss someone's sexual orientation, never hug someone, or offer someone more than a handshake's worth of physical touch. (Not to mention the instructor also told us not to discriminate on the basis of sexual orientation, but that you should consult your local laws to see if it's okay to discriminate on the basis of gender identity -- as if legal means okay!)

But in this case, aren't those the kinds of sexually suggestively propositions and objectifying comments that we want to be stopping? If I was subjected to raunchy come-ons and requests for nudity at my office, I'd want to sue, too. And whether the harassment is from other employees, or customers, or the public, it's still the employer's responsibility to make sure it doesn't happen.

Granted, the general procedure is to report the harassment, follow the company policy to address the harassment, and if it doesn't stop then you have a court case. Do you know if something like that happened? Because if they sued without giving the fire dept the opportunity to address the harassment, then they shouldn't have had a case.

As I understand it, they asked not to be assigned to drive the truck in the parade because of their religious beliefs, not because they anticipated sexual harassment. I don't think that the supervisor who denied their request had reason to expect harassment either.

And yes, if something like this had happened at work, and management had not stepped in immediately to stop it, the employees would and should have a case.

Wolfgang E. B. Wolfgang E. B. | February 19, 2009 3:20 PM

I wonder if it had been a Neo Nazi parade and the firefighters were subjected to ant-semitic and racial slurs, would they have reacted the same way?

It seems to me that a firefighter's job is to protect and save people, even people they don't like. Being subjected to a handful of unwanted comments during a parade does not constitute sexual harassment. Real harassment is an ongoing situation in the workplace that creates a hostile environment and undermines an individual's ability to perform his or her job.

I think this case is an insult to everyone who has experienced real harassment on the job, and these firefighters are showing a level of immaturity that is very unprofessional. It looks like nothing more than an excuse to publicly demonstrate their disapproval of gay people.

So, in other words, it's not okay for women or gay men to be subject to catcalls and come-ons while on the job, but it's okay for straight men to be subject to same.

Double-standard much?

What's ridiculous is that these guys were forced to participate in a purely ceremonial function at an event they found offensive. We are supposed to be allowed a certain degree of freedom of conscience in the U.S. We aren't talking here about pharmacists refusing to supply contraceptives, or taxi drivers refusing to ferry a whole class of citizens, we're talking about a silly parade. Reasonable accommodation ought to be made for everybody -- of any sexual orientation, gender, or ethnicity -- to opt-out of participating in events unconnected to effective job performance that make them uncomfortable.

These guys are crybabies, but they're in the right. I'm glad they won.

You're wrong about where the double standard is. A single, isolated example of catcalls and vulgar come-ons does not amount to the legal definition of sexual harassment for ANYONE - women, gays, firefighters or anyone else. For a workplace to be considered a hostile environment under the law, the harassment must be severe and pervasive - of the sort that would drive a person out of the job or impede his/her ability to perform the job. This example comes nowhere close.

As for whether the event was silly - well, maybe gay pride, St. Patrick's, and Columbus Day ethnic celebrations are silly, but lots of governors, mayors and members of Congress take them seriously enough to show up every year. Good community relations are important for fire and police departments; that's why they participate in the first place. It may not be the most important thing that they do, but it's certainly appropriate.

The law isn't supposed to be a crutch for people to use to bludgeon their personal minority pick. To see it used in this manner is disgraceful. "Ridiculous" doesn't go quite far enough.

The firefighters are public servants. They should do their jobs, including any ceremonial functions that they get assigned. Their superior officers aren't the ones making the rude comments, so in my mind this can't be legally actionable sexual harassment because it doesn't have consequences in the employer-employee or employee-employee interaction, and no physical contact occurred.

Now, as for rude - yes, comments made by passersby can be rude. I see no real damage, though. These were lame jokes, not credible threats. There is no power imbalance that compels the offended firefighter to be afraid for his safety or life after he finishes his shift. This isn't like a white member of the public threatening a black firefighter by waving a noose at firefighter and saying, I know where you and your family live. This isn't like a 6'5" 250# layman telling the woman ambulance tech. that he means to fuck her, and will be waiting for her at her home.

Why can't I, an attractive non-butch woman, get money for the various rude comments made by various male passersby over the years? and for the umpteen times I have been followed by strange guys in cars? I can't even get gas money for the gas wasted in driving to the closest (police station, hospital front door or emergency room driveway) in order to lose the guy by waiting him out in a well-lit area with law enforcement or security.

Yeah, this is silly. If every waitress who ever got a lewd comment from a customer sued her employer all at once, restaurants all over the country would have to shut down.

The people who were shouting those comments didn't have any power over the firefighters, and that's what I thought sexual harassment law was supposed to be about: power. Guess it's too vaguely written.