Sexual Misconduct, Sexual Harassment and Sexual Discrimination

Introduction

A major problem that has plagued law enforcement over the last two decades is sexual misconduct.  The long-standing men’s culture of law enforcement may have played a role in this pervasive problem.  In order to address this issue, law enforcement must first acknowledge the existence of sexual misconduct in the profession and then take active steps to address the cultural issues that allow such conduct to continue.  The purpose of this manual is to define the various types of sexual misconduct that has existed in the law enforcement profession; to provide case-based scenarios for training purposes; to outline the legal and liability issues of the involved officer and the agency; and to provide agencies with the appropriate response to these issues.

Sexual misconduct takes many forms in the law enforcement profession.  First, there is sexual harassment.  Sexual harassment takes on two forms.  The first type is referred to by the courts as quid pro quo harassment.  The term quid pro quo is a Latin contractual term meaning something for something.  In the sexual harassment context, it means if the worker wants to be rewarded with a promotion or pay raise, they have to provide something, of a sexual nature, to their supervisor.  The second type of sexual harassment, which law enforcement agencies are often faced with is referred to as the hostile work environment.  A hostile work environment is one in which sexual comments; sexual jokes, sexual pictures etc. are so pervasive that a person is affected in their ability to perform their job.

The next type of sexual misconduct is sex discrimination.  Sex discrimination occurs when a supervisor or a law enforcement entity utilizes sexual stereotypes to base their decisions with things like hiring, promotion or discipline.  The allegation in this type of case is that the agency inappropriately uses gender or a sexual stereotype as a basis for an employment decision.

The final type of sexual misconduct to be addressed in this training involves the misuse of police power by officers to gain sexual favors from citizens with whom they come into contact.  Newspapers and television news broadcasts regularly publicize the acts of some law enforcement officer who has coerced a person into a sexual encounter in exchange for leniency in an arrest or motor vehicle violation.  There are also cases where an officer who, under the guise of providing protection to someone who is of diminished capacity due to alcohol or drugs, has also coerced a sexual encounter.

All three of these various types of misconduct are not only seen in newsprint, they are also seen in various judicial decisions following lawsuits brought by the effected party against the individual officer as well as the law enforcement agency.  All three types of conduct have an adverse effect on the law enforcement profession generally and the employing agency specifically.

Through education and training, agencies can begin to change the culture that has allowed this type of misconduct to continue.  Strong policy, coupled with enforcement will speed the process and send a message to employees that this type of conduct will not be tolerated.  Finally, proper decisions by the employees themselves will protect them from one of the most difficult type of legal action they may ever face.

Agency Liability

Over the last two decades, the amount of litigation brought against public agencies has greatly increased.  This dramatic increase can largely be attributed to a United States Supreme Court case decided in 1978. The case held that some government entities were “persons” and thus could be sued under 42 U.S.C. § 1983.  Prior to 1978, counties, towns and municipalities could not be sued under this statute.

This statute gives the federal courts jurisdiction to hear claims regarding the alleged violation of federally protected rights.  Unlike most state court claims brought against government entities, there is no cap on damages for a § 1983 claim.  In addition, lawyers who prevail for plaintiffs bringing these claims against a government entity are also entitled to recover attorney’s fees.  In some cases, these fees exceed the actual award for damages.

Under the federal law, 42 U.S.C. § 1983, a municipality will only have liability where the violation of a federally protected right was caused by some policy, custom, practice, rule or ordinance of the municipality.  The corollary is also true.  Where the government entity has a policy, rule, custom or ordinance that is enforced, which prohibits the conduct in question, the entity will not be liable simply because the employee committing the act works for the entity.

Policies are an essential component of liability-risk management for any governmental entity.  Thus, it is incumbent upon public safety administrators to undertake the task of developing and maintaining policies.
In 1978, the United States Supreme Court determined that a local government entity was a “person” for purposes of § 1983 liability.  In Monell v. Department of Social Services of New York, the Court considered a lawsuit alleging a violation of civil rights based on a Department of Social Services policy that required pregnant female employees to take a leave from work before such leave was medically necessary.ⁱ  The Court in its decision overturned that portion of Monroe v. Papeⁱⁱ that excluded local government entities from liability.  It was Monell that opened the floodgate for litigation against public safety agencies alleging the violation of civil rights.

The decision in Monell did not create vicarious liability or liability based on the employer/employee relationship.  In fact, the United States Supreme Court expressly rejected the doctrine of respondeat superior (let the master respond for the acts of the servant) for entity liability.  Instead, the Court held that a local government entity could only be exposed to liability under §1983 when the violation of a federally protected right occurred as the result of some policy, custom, ordinance, rule or regulation of the government entity.   Policies, ordinances, rules and regulations must be officially adopted in order to create liability whereas customs are the accepted practices of the entity which have the force of a policy.

In establishing municipal or county liability under the Monell analysis, a plaintiff has four potential mechanisms:

• Formal rules, regulations, policies or ordinances:  This is the easiest claim for a plaintiff to make out since they merely need to get a copy of the official policy and need not show a pattern of conduct by the entity.
• Custom/Practice: Customs and practices may be established by showing a pattern of conduct which has the force of law or policy. The operating assumption under this type of claim is that the final policymaker for the entity knew or should have known of the custom.  As such the final policymaker has acquiesced to the custom by their failure to act in stopping the pattern of conduct from taking place.
• Attribution Method: This method does not require the showing of a pattern of conduct.  Under this type, a single decision which is committed or made by a person who is later determined to be a final policymaker may establish liability.  When a final policymaker makes a decision, that decision has the force of policy and is imputed to the entity.  It should be noted that a determination of who is a final policymaker is not always clear.  If the person setting forth the policy is subject to review and or veto, it is unlikely that a court would consider that person a final policymaker.

• Failure to Train: Where a government entity is deliberately indifferent to the likelihood that constitutional rights will be violated by a failure to train liability may be imposed.  Generally a court will not allow a failure to train claim to stand based upon an isolated incident.  In order to set out a failure to train claim a plaintiff must establish one of the following:

  • Plaintiff must point to a specific deficiency in training in an area where the need for training is patently obvious.  In cases where a plaintiff can establish a failure to train in an area where the need for training is patently obvious, a single incident will suffice.  For example, a department that failed to train officers in the use of deadly force may meet this standard.
  • Where a plaintiff can show a pattern of conduct which leads to the violation of federally protected rights such that final policymakers are on notice and have failed to correct through training.

Thus, public safety agencies cannot avoid liability by simply avoiding written policy.  Doing so, will leave the department open to liability based upon the custom or practice of the department, which, by their nature, are open to anyone’s interpretation.

A short statement on the concept of a final policy maker is worth review.   A bench decision from the Rhode Island Federal District Court exemplifies the formalistic approach to determining a final policy maker. In Murtagh v. City of Providence,   Jack Murtagh was a retired police officer who had become a businessman.  He was the owner of porn shops and strip clubs.  In an effort to rid the Providence’s residential neighborhoods of strip clubs, the police chief, Urbano Prignano Jr. decided to place marked police cars in front of certain strip clubs with their emergency lights activated.  In addition, an officer would stand outside of the cruiser with a video camera filming patrons as they entered the strip club.

Murtagh, supported by the local ACLU, filed suit alleging violations of his civil rights, particularly First Amendment violations as well as Due Process violations.  He sought an injunction to stop the activities of the police.  Prior to a hearing on the injunction, the practice was stopped.  At the hearing, Murtagh, as the owner of Cabana Girls’ Night Club alleged that the chief was the final policymaker of the Providence Police Department and that the policy promulgated by the chief violated his rights.  The Federal District Court of Rhode Island dismissed the case holding that under the city charter, the chief’s decisions were subject to review by the commissioner of public safety and thus, the chief was not the final policymaker for the department.
In determining the final policymaker for a public safety agency, one must look to the law to determine who is vested with the final decision making capacity.  The law may be found in a city/town/county charter, ordinance, rule, regulation or statute.

A case decided January 29, 2003 examined the reach of a Monell claim against an agency.  In Hernandez v. Borough of Palisades Park, the United States Court of Appeal for the 3rd Circuit outlined the limits of a claim based upon a department policy.ⁱⁱⁱ  The Borough of Palisades Park had a policy that encouraged homeowners who were leaving their homes for extended periods, to notify the police department so that special attention could be given to the home during the owner’s absence.

Unfortunately for the department, a group of officers, five of seventeen on the department or nearly 30%, were using this information to burglarize the homes.   Ms. Hernandez notified the department per this policy when she went out of town.  When she returned she found that her home had been burglarized and nine fur coats had been stolen.

In analyzing Hernandez’ claims in this case the court noted that the chief of police was the final policymaker for the department.  The fact that a lieutenant was involved in the burglary was insufficient to put the final policymaker, the chief, on notice that officers were committing these burglaries.  The court asserted that “a reasonable fact-finder may conclude that a chief of police has constructive knowledge of constitutional violations where they are repeatedly reported in writing to the police department…In addition, constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of their official responsibilities the municipal policymakers should have known of them.”  The court found that rumors that had circulated regarding these burglaries in 1992 were insufficient to establish that the chief acted with deliberate indifference to these rumors, particularly in light of the fact that there was no showing that the chief was aware of these rumors.

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