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‘What was your most unusual sex act?’ Cincy police, fire recruits asked about sex

reprinted: , Cincinnati Enquirer Published 12:01 p.m. ET Sept. 13, 2018 | Updated 3:53 p.m. ET Sept. 13, 2018

Cincinnati police and firefighter recruits are asked to describe their “most unusual sex act” in a questionnaire that can later become accessible to the public.

The questions are part of the Fire and Police departments’ pre-employment process. They raise concerns for some that new recruits are being asked to divulge private, probing details about their sexual history.

“This certainly raises eyebrows,” said Mary Turocy, director of public affairs for the Ohio Civil Rights Commission.

“Have you participated in a sexual act in a public place?” Cincinnati police and fire applicants are asked. “Location(s) and number of times. … Explain each circumstance.”

Another asks: “Not counting self-masturbation or legal sexual activity with a willing partner, what was your most unusual sex act?”

Cincinnati isn’t the only jurisdiction in the region asking such questions. West Chester, Delhi and Colerain townships all ask recruits about legal sexual acts or urges, including one about arousal by fire.

Staff at the Ohio Civil Rights Commission reviewed the questions obtained by The Enquirer via several records requests. Turocy said no discrimination lawsuits have been filed in the state pertaining to these types of questions.

Cincinnati police and firefighter recruits are asked to describe their “most unusual sex act” in a questionnaire that can later become accessible to the public.

“However, if someone made an allegation related to any question, especially a question that is somewhat unusual like those, we’d be looking at whether it is relevant to the duties of the job,” she said.

Sgt. Dan Hils, the Cincinnati police union president, said he supports the question about sex in a public place, as it is an “indication of law-breaking exposure.”

But the question about unusual sex, a version of which he recalled being asked as an applicant, could “possibly be out of bounds,” he said.

Questions about illegal sexual activity — sex with minors, sexual assault or possession of child pornography — appear in all of the pre-employment questionnaires obtained by The Enquirer.

“What we should be asking about are things that are criminal in nature,” Hils said. “…Stuff geared more to people’s private, behind-closed-doors lives, I do not see as having a bearing on the work we do.”

Lori Adelson, a Florida-based labor and employment attorney who represents employers, said that while she doesn’t specialize in Ohio law, she generally advises against posing questions that are “irrelevant to the functioning of the business and could possibly be deemed inappropriate.”

“If I was that employer’s attorney,” she said, “I would recommend they don’t have those questions in there.”

The city of Cincinnati said in a statement that “the specific questions mentioned are a small component of a comprehensive questionnaire used during a polygraph exam for prospective recruits. The polygraph is used to help gauge a respondent’s reactions and responses to difficult questions.”

Asking about sexual history is not uncommon for the region’s first responder recruits.

“Ever sexually aroused by fire?” West Chester police recruits are asked during a polygraph background test.

They’re also asked if they’ve ever been married to more than one person at the same time, if they’re experiencing “marital problems” and if they “ever (had) sexual relations/contact with a corpse (dead person or animal)?”

Barb Wilson, a West Chester spokeswoman, said the Police Department is looking to “determine the character, moral standards and ethical decision making” of its applicants.

“The questions asked as part of the polygraph examination should be considered as a collective of questions and not individually,” she wrote by email. “They are designed to gauge reactions and determine truthfulness in the broad range of topics covered.”

The city of Norwood asks police and fire applicants if they’ve ever watched others having sex.

Emma Schmidt, a Cincinnati sex therapist, said by email that “the way that the questions are asked could present the material in a way that suggests that the behavior would be deemed as a negative and thus stigmatize the behavior.”

The Colerain Township Department of Fire and EMS asks applicants about infidelity.

“Have you ever had sex, or a sexual relationship with a married co-worker?” says a pre-employment questionnaire.

If you’ve ever been really close to losing it on your boss and potentially getting fired, or arrested, you’re not alone. Susana Victoria Perez has more. Buzz60

Colerain Police Chief Mark Denney said such questions aren’t lewd but can be revealing.

“The questions we ask that deal with sexual activity are generally limited to illegal activities. We do, however, ask more pointed questions that tend to reveal poor-decision making and lack of character in an applicant,” he said. “Our responsibility to the community is to learn everything about someone before handing them our badge and asking the community to trust them.”

Delhi Township police recruits are asked if they’ve “ever posted or transmitted naked/sexual images of yourself over the internet or cell phone app.”

Jack Cameron, the township administrator of Delhi, said it’s become increasingly difficult to find a recruit among the younger generation who hasn’t shared a picture of a “body part” with a partner, invoking changing values between generations.

He stressed the importance of sexual-based questions in screening applicants.

“Being in the business of public trust, I think this is the least we can do to vet prospective employees who will be afforded the public’s trust simply by being a Delhi representative,” he said, adding Delhi’s questions have been reviewed by the township’s employment attorney to ensure they don’t violate applicants’ rights.

In 2015, Gov. John Kasich signed a law barring public employers from including on job applications questions concerning an applicant’s criminal background.

The “ban the box” law, however, has provisions that allow a background check and consideration of prior convictions based on the nature of the job, according to the Ohio Department of Administrative Services.

Turocy, the Ohio Civil Rights Commission spokeswoman, said questions about sexual activity may be problematic in different contexts, but for employers, one factor is key: “Is it necessary for the employer to know that about the employee?”

The Enquirer’s Kevin Grasha contributed to this story.

Wrongful Termination in Fort Lauderdale

Maintain Thorough Employee Records

One of the most important steps your business can take to fight wrongful termination claims is to keep detailed records of an employee’s conduct. Review the employee’s conduct every few months, and keep an itemized list in the employee’s file of the areas they need to improve. Similarly, written records of misconduct should also be kept.

Publish Written Rules and Give Copies to Employees

Each employee should also receive a written list of rules and expectations in the workplace, and the consequences for any violations. Even if your business does not publish a 50-page handbook, providing written procedures to each employee will benefit your business if you can demonstrate that the employee had notice that a violation he or she committed would result in termination.

Take Any Decision to Terminate an Employee Seriously

It is a good idea to consult the human resources department in a business before firing an employee. Discussing the situation in detail with a third party will help you argue that there was no bias in your decision to terminate the employee.

Parting of Ways Documentation

The Parting of the Ways: Documentation

No matter how carefully an employer screens employees during the hiring process, and no matter how well they train and treat their employees, the time may eventually come when they have to terminate an employee.  This process is never an easy one; it often involves emotional responses, especially when the employee is well-liked on a personal level.

Termination of employment can become even worse, however, if it is not handled properly, leaving the employer open to litigation for wrongful termination.  Wrongful termination is defined as any employment termination that violates an employee’s rights:

  • If the termination is based on unlawful reasons, such as racial discrimination or revenge for private actions of the employee;
  • If the termination violates a contractual agreement with the employee;
  • If the termination involves the violation of public laws or policies (for example, termination for absences as the result of jury duty or other public responsibility).

Backing Up a Termination

Even when an employee voluntarily resigns or quits, the employee may claim “wrongful termination” alleging that the employer created a hostile work environment causing them to no longer be able to work for that employer and “forcing” the employee to quit (known as a Constructive Termination).

Proper documentation is critical for an employer to avoid or defend against a wrongful termination claim. Employers should be able to demonstrate cause for termination of employment with proper documentation, possibly including:

  • Performance evaluations
  • Disciplinary action forms
  • Attendance sheets

Indeed, simply having documentation may not be enough; the documentation must be consistent with the reasons given for terminating the employee.

The Final Word

Finally, when holding the exit interview or other meeting where the employee is informed of their termination, it may be prudent to provide them with the reasoning and all documentation.  This simple step may help deter possible litigation related to the termination.

How to Handle Frequently Absent Employees

Most businesses take responsibility for the well-being of their employees.  This is not just the proper approach but there is, of course, self-interest as well.  Employees who can take time off when they are not well will get better faster and will not spread their illness throughout the office.  Sick days and vacation days are good for everyone…  if they’re used properly.

But what happens when you have an employee who abuses sick leave and other absenteeism policies? Employee sick leave and absenteeism management is an important part of running an efficient business, and part of an effective strategy is being prepared for employees who abuse their time off.  Here are a few simple suggestions to protect your business.

Keep Track

If you believe an employee is using sick days inappropriately, look for patterns, ask for doctor’s notes where appropriate and keep records for later reference.  This is doubly important if the employee is using sick days after being denied a day off for other reasons.  If they are absent more frequently than their peers (who then have to cover their work) being able to demonstrate this abusive pattern with data is a powerful tool both for educating the employee and protecting yourself later if you are forced to let the employee go.

Communicate the Concern

An important aspect of employee sick leave and absenteeism management is to have proper sick leave and absenteeism policies. If you believe the employee is abusing these policies then alert the employee to the concern.  Have a meeting with them and tell them you have noticed their frequent absences, and use the data you have collected.  Be clear that while you sympathize with the circumstances that may be causing these absences, you cannot have an employee constantly missing work, as it impacts not only you the employer  but their co-workers who have to cover for them.  Be clear that you expect the behavior to change and that their failure to do so could result in disciplinary action including termination.

Consider Alternatives

As a final concept for employee sick leave and absenteeism management, consider transforming your sick and vacation days into a Paid Time Off (PTO) program.

Who Factors Influence Who Can Be Classified as an Independent Contractor?

Many states, in addition to the IRS, have adopted guidelines and definitions about independent contractors, but there is still confusion about what this means for employers.  In the majority of locations, rules regarding independent contractors relate to what level of control the employer has over a product or service specifically related to whether the employer defines what is being done and how it will be done.

Other principles refer to independent contractor status in relation to how the person is paid.  An individual who is on payroll and receives a regular check will be classified as an employee as opposed to an independent contractor.

In order to determine whether someone should be classified as an independent contractor, there are several other factors to consider, including:

  • Whether the worker can be discharged from employment at any time
  • Whether the worker can choose not to come to work without fear of losing his/her employment
  • If the worker supplies the materials, tools, and equipment to do the job
  • Whether the worker can control the hours of employment
  • Whether the work conditions are temporary or permanent

Misclassifying a worker can have dire ramifications for a company in terms of legal disputes.  An employee or worker who believes that he or she has not been classified correctly can file a legal claim regarding his or her rights.  An employer who has questions about the best way to classify someone should get legal counsel first to determine whether the relationship appears to meet the guidelines to be classified as an employee or independent contractor.  There are legal consequences with regard to defining this relationship in the wrong way, so the circumstances of the employment, the employee’s responsibilities, and other factors should all be evaluated carefully.

The Employment Laws Every Employer Must Know

The story of labor in general is one of increasing rights and protections, and the modern business climate sees employees enjoying the best conditions in history.  As an employer, it is incumbent upon you to be familiar with the Florida and federal laws that protect employees so you don’t run afoul of them by accident.  Here are the laws every Florida employer needs to know.

Job Discrimination and Reemployment

The Civil Rights Act of 1964 prohibits discrimination in firing, hiring, or compensation based on religion, race, ethnicity or sex.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees that members of the armed forces be reemployed in their previous positions at the same pay and with the same benefits and privileges.  The Age Discrimination in Employment Act (ADEA) specifically prohibits discrimination against employees over the age of 40 due to their age.  And The Americans with Disabilities Act (ADA) prevents discrimination against people living with disabilities as long as they can perform a job’s core duties.  The Pregnancy Discrimination Act (PDA) prohibits discrimination against female employees who become pregnant.

Compensation

The Fair Labor Standards Act (FLSA) sets the minimum wage nationally (your state may have a superseding minimum wage) and sets overtime rules.  It also limits the work that underage employees can engage in.  The Equal Pay Act (EPA) requires employees to pay women as much as their male counterparts for the same jobs.

Leave

The Family and Medical Leave Act (FMLA) assures employees of up to 12 weeks annually of unpaid leave after the birth or adoption of a child, or to care for a sick family member.  However, the FMLA only applies to businesses of 50 or more employees.