Fire Law: Workplace Allegations and Credibility Determinations

Firefighter Smith, who is a 10-year veteran, knocks on the office door of her captain. “May I speak to you privately?” she asks.

“Certainly, come on in” the captain says, “and close the door behind you.”

Smith enters, takes a seat, takes a deep breath and begins: “Cap, a while back, Firefighter Jones asked me to go on a date, and I told him no. Since then, he has been making my life a living hell. He just won’t let up. No matter what I say or what I do, I am wrong. Now he is starting rumors about me.”

The modern firehouse workplace is a complex system of individuals, relationships and organizational culture governed by departmental policies on the one-hand, and federal, state and local laws on the other. Fire officers often need to deal with allegations from and about members, some of which raise troubling questions that involve harassment, bullying and other forms of inappropriate activities.

It is not uncommon for officers to have to make decisions based on varying accounts of what occurred. Determining who is telling the truth is an age-old problem that combines a mixture of common sense, psychology and intuition. We do it on a daily basis, often unconsciously, as we process everything that we see and hear.

Unfortunately, we tend to believe that our senses function like high-tech videorecorders. We assume that our brain accurately and indelibly records what we see and hear. The reality is that both our initial perception and our later recollections often are flawed. Two people can observe the exact same event and reach diametrically opposite conclusions about what just happened, without either lying.

Many are skeptical at such a concept, but it easily is proven: Watch a sporting event and observe how the crowd reacts to close plays. Confirmation bias causes fans of one team to perceive a close play one way, while fans of the other team see it differently. In the absence of video replay, no amount of debate will convince a fan that his/her perception of what occurred was wrong. In fact, debating can lead to further interpersonal conflict.

Trying to determine what happened in the workplace is no less difficult a challenge. The workplace is ripe for differing accounts. At stake are civil suits that are brought by those whose complaints go unaddressed and those who are wrongly disciplined. How are fire officers expected to make sound decisions in cases that range from allegations of misconduct to complaints about harassment and discrimination?

In 1999, the U.S. Equal Employment Opportunity Commission (EEOC) developed guidelines for employers to use when they are confronted with factual disparities in sexual harassment investigations. The guidelines, which draw from courtroom jury instructions, now form the basis for what is called credibility assessments or, alternatively, credibility determinations. Widespread acceptance of the EEOC guidelines has led to their use in other types of workplace disputes beyond sexual harassment.

Among the EEOC guidance are five factors to be considered:

• Inherent plausibility: Is the testimony believable on its face? Does it make sense?
• Demeanor: Did the person seem to be telling the truth or lying?
• Motive to falsify: Did the person have a reason to lie?
• Corroboration: Is there witness testimony (such as testimony by eyewitnesses, people who saw the person soon after the alleged incidents or people who discussed the incidents with the person around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
• Past record: Did the alleged harasser have a history of similar behavior?

In 2017, the California Department of Fair Employment and Housing (CDFEH) issued more comprehensive guidelines, including nine credibility factors. They are:

• Inherent plausibility: This refers to whether the facts put forward by the party are reasonable (whether the story holds together); in other words, ask yourself whether it is plausible that events occurred in the manner that’s alleged
• Motive to lie (based on the existence of a bias, interest or other motive): This refers to whether a party has a motive to be untruthful
• Corroboration: This refers to whether a direct or indirect witness corroborates some or all of the allegations or response to allegations
• Extent a witness was able to perceive, recollect or communicate about the matter: This refers to whether the witness could reasonably perceive the information reported (in terms of where they were, what else was happening, etc.)
• History of honesty/dishonesty: Although investigations are not meant to make character judgments about the parties (whether they are a “good person”), if an individual is known to have been dishonest, this can weigh against his/her credibility
• Habit/consistency: This refers to allegations of a behavior that someone is known to do on a regular basis (such as hugging all female employees in greeting)
• Inconsistent statements: This refers to one individual giving statements that are inconsistent in a way that is not easily explained
• Manner of testimony: Such as hesitations of speech and indirect answers (particularly when the witness gave direct answers to foundational questions)
• Demeanor: Experts caution against using demeanor evidence, because most people cannot effectively evaluate truthfulness from an individual’s demeanor; demeanor can be used as a credibility factor, but investigators should apply it with caution and understand the pitfalls of relying on demeanor when making a finding; to the extent possible, your conclusions should be based on an analysis of the objective evidence

So, where does this leave our fire officer who has a difficult decision to make about how to proceed? First, let’s acknowledge that we all have confirmation bias. Relying on intuition to determine who is telling the more accurate story is not sound advice in a situation such as this. Subjective and subconscious factors may come into play, leaving an officer unable to objectively explain why one firefighter’s version of events is believed over another’s. The EEOC and CDFEH factors can and should be used by the officer to evaluate credibility. They provide objective, court-approved criteria that can be relied on when reconciling differing accounts.

Second, although credibility determinations are essential tools, they should not be used as an excuse to ignore employee complaints. Rather, they should be used to objectively evaluate witness credibility after an impartial investigation is completed. Thus, the officer who is in this scenario must understand that he/she is at the very beginning of an important process. How that process will unfold will vary from department to department.

For those who are interested, additional details about both the EEOC and CDFEH factors are available online at:

EEOC: https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors 

CDFEH: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide.pdf