Sexuality harassment: firefighters who alleged sexual harassment at gay parade win jury verdict

by on February 19, 2009  •  In Culture, Employment law

Four San Diego firefighters have won a sexual harassment suit by arguing 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. The verdict both trivializes the kind of at-work quasi-terrorism that can constitute real sexual harassment, and also illustrates the danger of how easily sexual stigma can be manipulated.

This 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 was not the official who ordered the group to participate after they objected and has said that she was unaware of the incident until after it was over, 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 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 such 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, and that issue is now on appeal.

But the case went to trial on the sexual harassment theory. The idea that what these four men 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. The judge should never have let these facts go to a jury.

From the San Diego Union Tribune:

Four months after walking out of court without a verdict, four San Diego firefighters suing the city for sexual harassment left the same courtroom yesterday with an outcome that pleased them even though the money isn't nearly what they initially sought.

A jury of eight women and four men deliberated for 2½ days and found that the firefighters, who were ordered to ride a fire engine in the 2007 gay pride parade, were sexually harassed by some participants and spectators. Jurors awarded a total of $34,300.

“It was difficult,” said juror Kathy Meyer of San Diego. “I felt they were sexually harassed and I thought the department should have paid more attention and took these guys a little more seriously. I don't think they lied.”

Deputy city attorneys said they would appeal.

This is the second time the firefighters have gone to trial on the sexual harassment claim. A jury deadlocked in October. In that trial, the jury was asked to award each firefighter up to $1 million. The firefighters' attorney, Charles LiMandri, didn't request a specific figure in this trial. “We're pleased,” LiMandri said. “The amounts were a little low, but quite frankly, in this economy, it's not surprising and not that disappointing. The jury has forced the city to acknowledge . . . that what happened to my clients is a violation of their rights.”

Nancy Chiquete, the jury forewoman and a San Diego resident, said that each firefighter testified he wanted to make sure nothing similar would happen to others in the department. “So, I think in that sense, hopefully they got what they wanted,” she said. “I felt truly like these four men were wronged.”

Fire Chief Tracy Jarman, who testified at both trials, declined to comment yesterday through a spokesman. Days after the parade, Jarman apologized to the firefighters and created an interim policy on parade participation. The policy was changed by the time of the 2008 gay pride event to say parades would be staffed with volunteers.

The firefighters, who remain with the department, said their supervisors ignored them when they said they did not want to be in the parade. A crew that had volunteered withdrew days beforehand. The parade experience left the firefighters with headaches, anxiety, irritable bowel syndrome and other stress-related symptoms, they said. They also testified that they were subjected to catcalls and saw barely clothed men simulate sex acts along the route on University Avenue in Hillcrest, which is home to a large gay population.

“It was hard getting called a liar and a bigot,” said one of the four, who is trying to repair a relationship with a gay uncle who strongly opposed the lawsuit. “But it's what I had to do. I had to stand up for my rights.”

Jurors were asked to answer nine questions and nine panel members had to agree on each one for the city to be held liable. They voted 12-0 only on the first and last questions. The first question asked: “Were the plaintiffs subjected to unwanted harassing conduct because of their gender?” The last question asked: “What are the plaintiffs' damages?”

The question with the slimmest support was the second one, which was the question the jury in the first trial deadlocked on. It asked: “Was the harassment of the plaintiffs severe or pervasive?” For that question, the jury voted 9-3 for each firefighter. The dissenters, all male, were the same each time. All three declined to comment.


3 Responses to Sexuality harassment: firefighters who alleged sexual harassment at gay parade win jury verdict

  1. Distingué Traces February 19, 2009 at 10:59 PM

    I actually think that they were right in their claim about free expression and religious liberty. They weren’t really at the parade to “serve the public” as firefighters, they were there to express support for gay pride – against their wills. I sympathize – I certainly wouldn’t tolerate being required by my city job to march in a “Traditional Marriages Only” demonstration.

    Unfortunately, the sexual harassment claim is a complete red herring, and THAT is the precedent that has now been set.

    Worrying that a department or city could be sued by emergency responders who are ordered into a situation they find shocking or traumatic could seriously hurt cities’ ability to respond promptly.

  2. Nan Hunter February 19, 2009 at 11:11 PM

    As I noted, the fact that it was a parade bothers me as well, because expression is the very nature of a parade. However, city agencies are called upon to send representatives to staff information booths or engage in other much more neutral activities at a wide variety of ethnic and neighborhood festivals. If I were the boss, I would try to send people who would be best suited for the particular environment. But I don’t think that tasking someone to staff a booth, for example, is improper. Engaging with various segments of the community is a legitimate part of serving the public.

  3. Mike March 16, 2009 at 10:47 AM

    “I actually think that they were right in their claim about free expression and religious liberty”

    Where does this end? If they don’t like Christianity, can they refuse to put out a fire at a church? Refusing to participate in an official departmental function is unprofessional.

Leave a Reply

Your email address will not be published. Required fields are marked *