Sexual harassment remains pervasive in EMS workplaces despite the fact that sexual harassment has been unlawful for over 50 years, since at least the 1964 passage of Title VII. In advising EMS organizations on preventing sexual harassment for over 16 years, the common sentiment seems to be that some EMS providers and managers believe that because EMS is a unique work situation that the type of conduct that is and is not acceptable is somehow different. It is not! You might spend more time seeing and talking to your EMS co-workers than you do your own spouse and the dress and people and actual work may be less "stuffy" than in some work environments, but the rules regarding unlawful sexual harassment are exactly the same.
EMS is not alone; harassment is pervasive in all workplaces. Almost one-third of the approximately 90,000 charges received by the Equal Employment Opportunity Commission (EEOC) in 2015 included an allegation of workplace harassment, and the vast majority of those claims were sexual harassment claims . The large number of harassment complaints the EEOC continues to receive is one of the reasons it issued its recent "Proposed Enforcement Guidance on Unlawful Harassment" . While the guidance is still in draft form, it is extremely helpful for employers and employees to understand what is and is not unlawful sexual harassment.
WHAT IS AND IS NOT SEXUAL HARASSMENT
Sexual harassment can include harassment based on the person’s sex, sex stereotyping, pregnancy/childbirth, gender identity and sexual orientation. But, sexual harassment is only considered to be unlawful if the harassment is based on one of these legally protected personal characteristics.
For example, Angie is being teased by Bill, her co-worker, who continually makes derogatory comments about her forgetfulness and insinuates that she may not be that smart. But, Bill works on the same rig Angie does on the shift following Angie’s. Angie repeatedly fails to clean her rig, and Bill only makes these comments after she has told him she "forgot" as her excuse for not cleaning the rig on the preceding shift. Bill’s behavior may violate the organization’s code of conduct and may warrant discipline, but it is not sexual harassment (Angie’s behavior may also warrant counseling, coaching or discipline).
LEGALLY PROTECTED CHARACTERISTICS
In other words, just because someone who has a legally protected characteristic is being harassed, it is not necessarily unlawful harassment. Many people who are harassed like to throw around the term "hostile work environment." But, the first thing that is necessary for there to be a "hostile work environment" is for the harassment to be based on the employee’s legally protected characteristics. No matter how hostile a victim may perceive the conduct, if it is not based on the victim’s legally protected characteristics, it is not a "hostile work environment" under the federal equal employment opportunity laws. It is, however, behavior an employer should investigate and take measures to stop.
On the other hand, if Bill offends his female co-workers on a regular basis saying that women are not as smart as men and have no business in EMS, this would be sexual harassment. The reason the same basic statement would be sexual harassment in this instance is that it is gender harassment (which is a form of sex discrimination) and (incorrect) sex stereotyping, both of which are unlawful sexual harassment.
Gender harassment is hostile behavior that is devoid of sexual interest, and includes gender-based epithets, sexist comments and remarks that are unrelated to sex but still motivated by the victim’s gender. Gender harassment aims to insult and reject women or men because of their sex, rather than any actual sexual interest.
SEVERE AND PERVASIVE BEHAVIOR
The second thing that must be necessary for behavior to create a "hostile work environment" is that the behavior must be "severe and pervasive." What is severe and pervasive will vary depending on the circumstances.
The higher up the harasser is in the chain of command compared to the person being harassed, the lower the threshold will be for the conduct to be "severe and pervasive." In the second example above, because Bill teases the females on a regular basis, it would be severe and pervasive, even though all the females may not have heard all of his comments.
If the comments are not specifically directed at particular individuals, the conduct can still be sexual harassment. Let’s revise our second example a bit.
Bill and Ned work the same shift at a station with several other employees, including one or two females on a rotating basis. They regularly sit in front of the television and discuss with each other women’s body parts and what they did and did not like about their recent sexual encounters. Even though the comments are neither about nor directed to any of the females, some of the females overhear the comments on a regular basis. This, too, would be unlawful sexual harassment, even though the comments were not meant to be heard by anyone other than Bill and Ned.
If the conduct occurs outside the workplace, the conduct can still be considered sexual harassment. Let’s say Angie and Dawn watched "Fifty Shades of Gray" at the station while on shift one night. They turned the volume up pretty loud during some of the movie's sex scenes. Bill was in the neighboring bunk room trying to sleep. He asked the ladies to turn the volume down so that he could get some sleep, but this only made them turn the volume up louder. Angie posts comments about Bill on her Facebook page after she gets home from her shift, saying that he is a prude who probably has a small [male anatomical part], anyway.
We can debate whether the ladies’ conduct in watching the movie is severe or pervasive enough to truly be sexual harassment. But, the post on social media, even though it was posted outside of work, is severe enough that this would constitute sexual harassment, even if this was the only comment of this type that Angie had made.
4 PROACTIVE MEASURES EMS EMPLOYERS CAN TAKE
While this article focuses on sexual harassment, it should be the goal of every EMS organization to prevent not just sexual harassment and discrimination, but all types of unlawful harassment and discrimination. The best thing an EMS organization can do to protect itself is to make a concerted effort to ensure that the harassment and discrimination never occurs in the first place, by taking the following proactive measures:
1. CULTURE OF RESPECT
Demonstrate a consistent and earnest commitment of supervisory staff and all management to create and maintain a culture of respect in which not only sexual harassment and discrimination is not tolerated, but all types.
2. CLEAR POLICY
Adopt, regularly update and communicate to all personnel a comprehensive, clear policy against harassment and discrimination.
3. REPORTING SYSTEM
Have an effective complaint system that welcomes questions, concerns and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers and others with respect; operates promptly, thoroughly and impartially; and imposes appropriate and consistent consequences for harassment or related misconduct, such as retaliation.
4. ORGANIZATION-WIDE COMMITMENT
Have leadership, accountability and strong anti-harassment and anti-discrimination policies and complaint systems, and ensure employees are aware of them by having regular, interactive and comprehensive training of all employees to ensure that the workforce understands the rule, policies, procedures and expectations, as well as the consequences of misconduct.
1. See EEOC, All Charges Alleging Harassment: FY 2010-FY 2015, https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last visited Jan. 11, 2017).
2. https://www.regulations.gov/docket?D=EEOC-2016-0009. This guidance document has recently been extended for public input until March 21, 2017. To submit public comments, please go to https://www.regulations.gov/docket?D=EEOC-2016-0009.