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Department of Justice, Consent Decrees and the Fire Service

The U.S. Department of Justice (DOJ) recently reached a consent decree agreement with the town of Davie, Fla., to resolve allegations that the Davie Fire Department discriminated against firefighter/paramedics because of their pregnancies 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 [PDF]).

The consent decree resolves allegations of disparate treatment based on light-duty policies for pregnant female firefighter/paramedics implemented by the Davie Fire Department. In a 2012 case, the DOJ 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 nondiscriminatory policies.

This second complaint is the result of individual charges of discrimination referred to the DOJ by the Equal Employment Opportunity Commission. As alleged by the DOJ in this complaint, the firefighter worked for the Davie Fire Department under its previous policies and was adversely affected by those policies, which were implemented in violation of Title VII.

Fighting a Fire Led to Miscarriage

One of the allegations stated that the pregnant firefighter’s doctor wanted her on light duty during her pregnancy; however, the fire department’s policy 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 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.

Before returning to full duty from a light-duty assignment due to an on-the-job injury, she was forced to undertake a “reacclimation process.” This is defined as retaliation, and it 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.

Title VII Includes Employee Pregnancy Provision

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 antiretaliation policies to protect its employees from further violations of Title VII and conduct training of its personnel to ensure they properly handle future complaints under Title VII.

The fire department must also pay monetary awards to compensate the women firefighters, as well as two other similarly situated pregnant firefighters, in an amount exceeding $400,000.

Consent Decrees Affecting the Fire Service

A consent decree is an agreement or settlement to resolve a dispute between two parties without admission of guilt, and these are the most frequent types of settlement in the U.S. Many times, the court appoints an 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 and San Francisco. A consent decree affected Leesville, La., which had gone on over 32 years for hiring practices violating Title VII of the Civil Rights Act of 1964.

Probably the longest is a forty-year consent decree involving the city of Buffalo, N.Y. The city is requesting a 1974 DOJ consent decree be set aside after complying with the consent decree related to mandated hiring quotas overseen by a U.S. District Court judge.

Women firefighters have been an 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 reported discriminatory action undertaken by firefighters, fire officers and even fire chiefs involving women firefighters.

Protection Under the Law

The fire service represents a cross section of our culture. Many laws have been 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 by those laws. Claims based on violations are costing fire departments millions of dollars every year and ruin careers and dreams of those who have 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.

It’s important for us to understand 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 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 between a firefighter and her physician. Some departments provide a job description to the physician when a firefighter becomes pregnant so the doctor is aware of potential hazards facing all firefighters.

Some pregnant firefighters have remained on the job until the third trimester without 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.

Also important (among several important laws affecting your firefighters) is that disability may be claimed under the Americans with Disability Act (ADA). Under the ADA, an 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.

Policies and Procedures Are Not Enough

There are these and many more laws affecting your departments and your employees. Fire chiefs and their staffs must have a working knowledge of those laws affecting all of their employees and must have up-to-date policies and procedures in place related to these laws. It’s not enough to merely have these policies and procedures in place; departments must regularly train staff members on the policies and procedures that address laws affecting the fire department.

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