An Illinois firefighter who claims his colleagues made remarks about his sexual orientation has filed suit against the fire department for sexual harassment and intentional infliction of emotional distress. Justin R. Bakker filed suit against the Mokena Fire Protection District last month in US District Court for the Northern District of Illinois.
The complaint alleges three instances of harassment which Bakker alleges arise to the level of gender discrimination under Title VII of the Civil Rights Act of 1964. They are:
December 22nd, 2015 Incident
- That on December 22nd, 2015, while sitting at a kitchen table with another Paramedic/firefighter, the Plaintiff was discussing renting out the then current house he was living in and moving back home with his parents;
- That Defendant’s Assistant Chief Cirelli, overhearing that Bakker was planning on renting his house out to another fellow firefighter, stated to Plaintiff, “Well at least someone will be getting some action in the house. Well at least someone will be getting some action with a girl, at least”;
July 4th, 2018 Incident
- That on July 4th, 2018, Plaintiff and other of Defendant’s firefighters were lined up for Mokena’s Fourth of July Parade;
- That discussion occurred among the fellow firefighters that Mokena would be having its first Gay Pride Event;
- That discussion was also was concerning uniform shirts that the firefighters would be getting for cancer month and supporting the troops;
- That William Haas, President of the Board of Trustees for Defendant Mokena stated directly to Plaintiff, in front of and in the presence of the other firefighters, that he (Haas) was going to get Plaintiff a rainbow colored shirt and that the (Plaintiff) would wear it with all kinds of pride;
August 2nd, 2018 Incident
- That on August 2nd, 2018, Plaintiff and 9 other firefighters were at a training session taught by the Fire Marshall, Lt. Mark Sickles;
- That part of the training involved fire alarm panels used at retirement homes in the district;
- That during the training, Fire Marshall Sickles stated that there was a sheet of paper to be placed on the front of the panel to state how the fire department was to use the panel;
- That the Plaintiff asked Fire Marshall Sickles if they could change the paper to different colors to make it easier to understand what use the panel would be for the fire department to use, because there were multiple papers on the panel for different users (i.e. alarm company, fire department, retirement home staff);
- That Fire Marshall Sickles stated to Plaintiff in response, “How about we change the color to pink just for you, you like that color don’t you”;
- That Fire Marshall Sickles then proceed to tell the Plaintiff to, “shut up”.
In each instance, Bakker complained to superiors prompting a meeting with the offender. During each meeting the offender personally apologized for his comment. In each instance Bakker claims the fire department failed to take further action.
Bakker claims after the third incident he was forced “to remove himself from said workplace, fearing his own safety and mental health.” He seeks damages for lost wages, lost benefits and other pecuniary damages, as well as damages for mental anguish, emotional distress, loss of enjoyment of life, and other nonpecuniary losses.
Here is a copy of the complaint:
To ensure everyone understands what the law is, in order for hostile work environment sexual harassment to be actionable, it must be “severe or pervasive.” While the state of California has eliminated this requirement for state law claims, it remains the law in federal civil rights suits under the Civil Rights Act of 1964.
The SCOTUS has made it clear that the discriminatory conduct must “create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive” and sufficient to “alter the terms or conditions of employment.”
Said another way, “a reasonable person subjected to the discriminatory conduct would find… that the harassment so altered working conditions as to make it more difficult to do the job.” Harris v. Forklift Systems, 510 U.S. 17, 26 (1993) (Ruth Bader Ginsburg concurrence).
2) Isolated Instances of Harassment – Unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment. As the Court noted in Vinson, “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII.” 106 S.Ct. at 2406 (quoting Rogers v. EEOC, 454 F.2d 234, 4 EPD ¶ 7597 (5th Cir. 1971), cert. denied, 406 U.S. 957, 4 EPD ¶ 7838 (1972)). A “hostile environment” claim generally requires a showing of a pattern of offensive conduct.21 In contrast, in “quid pro quo” cases a single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits.22
But a single, unusually severe incident of harassment may be sufficient to constitute a Title VII violation; the more severed the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical.23 Thus, in Barrett v. Omaha National Bank, 584 F. Supp, 22, 35 FEP Cases 585 (D. Neb. 1983), aff’d, 726 F.2d 424, 33 EPD ¶ 34,132 (8th Cir. 1984), one incident constituted actionable sexual harassment. The harasser talked to the plaintiff about sexual activities and touched her in an offensive manner while they were inside a vehicle from which she could not escape.24