San Jose to Settle Harassment Suit

As increasing numbers of women have entered the ranks of the fire service, many fire departments have had to address allegations of sexual harassment. While undoubtedly each case of harassment involves a unique set of facts, a recent San Jose, California case would seem to be eligible for an award for being the most novel. A female firefighter's 9 year old son visited his mom's station. Apparently while there he used the men's room, where he found a hardcore pornographic magazine. Unbeknownst to his mom, the boy took the magazine home, where it was later discovered under his pillow.

When his mom confronted the boy about the magazine, he confessed. Upon returning to work she discovered some 60 other pornographic magazines, prompting her to complain to the station captain. The resulting investigation led to the female firefighter-mom being "shunned and taunted" by fellow firefighters. After months of such treatment, the firefighter sued the City for sexual harassment. The San Jose Mercury News reported on October 14, 2009, that the case was being settled for $200,000.

Allegations of sexual harassment based upon retaliation for filing a complaint are not rare. In fact many (if not most) sexual harassment cases include allegations of retaliation to address harassment that occurred after a victim complains about being harassed. What is unusual in this case (besides the involvement of a child), is that it appears the victim was not harassed PRIOR TO her complaining about the magazines. It was only after she complained that the harassing behavior began. In the final analysis, it matters very little. Harassment is harassment. It is not necessary that a person have been the victim of ongoing harassment prior to complaining, to trigger the anti-retaliation provisions of discrimination laws. There are cases where men have successfully alleged retaliation-based sexual harassment because they were harassed for supporting women firefighters who were being harassed. See McMenemy v. Rochester, 241 F.3d 279 (2d Cir., 2001).

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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