KCFD union ‘sold out’ firefighters’ right to sue for discrimination after steep settlements

Reality Check is a Star series holding those with power to account and shining a light on their decisions. Have a suggestion for a future story? Email our journalists at RealityCheck@kcstar.com.

Future Kansas City firefighters will not have the right to file the kind of discrimination lawsuits that have cost city taxpayers millions of dollars in settlements and jury verdicts in recent years, The Star has learned.

Local 42, the union that represents most fire department employees, has agreed to deny future members the right to file suit for discrimination claims not directly tied to wages and benefits, a move that several employment lawyers say will make it harder for the city to be held accountable for firefighters’ experiences of discrimination and harassment on the job.

Firefighters hired after next May would have no other option but to submit their discrimination claims to arbitration. Instead of having the right to present their evidence to a jury in a courtroom, cases would be decided out of public view in a conference room by an arbitrator paid by the city.

Legal experts say the process typically favors employers and results in smaller settlements when employees do prevail.

“Arbitration ensures that violations of employee rights are hidden from the public and press and removes the transparency that is essential to hold the city accountable for its actions,” said Erin Vernon, a partner at Bratcher Gockel Law, LC. who currently represents clients with discrimination claims against the fire department.

The union, which represents captains and those in lower ranks, agreed to diminish the rights of future employees in exchange for double-digit pay raises current members received in a new five-year contract that the Kansas City Council unanimously approved two months ago.

The city denied providing The Star a copy of the contract at that time. A reporter obtained a copy only late last week when the city fulfilled an open records request that the reporter had filed seven weeks earlier. The arbitration clause was not announced to the public when the contract was approved and known only to city officials and the union.

“This provision should more efficiently resolve claims and minimize costs,” was all Sherae Honeycutt, the city’s press secretary, would say Wednesday about the clause when asked for an explanation of how taxpayers would benefit from the change.

The fire department has long been accused of bias and fostering a hostile work environment for those not part of the white, male demographic group that has shaped the department’s culture for many decades, according to a report the city commissioned after The Star published a series of articles in 2020 about racism and sexism within the KCFD.

That series also prompted an ongoing U.S. Department of Justice investigation into whether the fire department is “engaged in a pattern or practice of discrimination against Black individuals” in violation of the Civil Rights Act of 1964.

Firefighters ‘sold out’

Local 42 President Dan Heizman did not respond to multiple requests for comment. An attorney for the union contacted Tuesday said he could not comment without permission from his client and would call back later. He did not call back nor did he respond to a voice message on Wednesday.

Five attorneys contacted by The Star who have represented firefighters and other city employees in discrimination lawsuits, however, said they were outraged by the arbitration provision.

One called it “a sad day for employee firefighters in the City of Kansas City.”

All agreed that employees who’ve experienced discrimination based on race, gender, age or sexual orientation will be less likely to get justice under mandatory arbitration.

For one thing, It will be harder for them to find attorneys willing to take their cases on, as lawyers working under a contingency arrangement don’t get paid unless they win a court judgment, settlement or arbitration award for their client. And studies show employees are less likely to. prevail through arbitration.

“Many if not most employees won’t be able to find legal representation when their rights are violated,” Vernon said. “If this has been agreed to, the union sold out their members and has attempted to waive their members’ right to a jury trial so that the city can’t be held responsible for violating the law.”

Most arbitrators are not judges and are not bound by the same rules as judges to ensure that the rights of individuals are protected, she added. Nor do plaintiffs in arbitration cases have the same appeal rights as they would in a court.

Christie Jess , a partner at Employment Rights Law Firm, LLC said the arbitration system is skewed to the benefit of employers and benefits employees about 22% of the time. Her firm currently represents a retired firefighter in a discrimination lawsuit.

Mandatory arbitration of employee legal disputes has become common in the private sector since the 1990s, when the U.S. Supreme Court upheld private employers’ rights to compel workers to settle workplace disputes by mandatory arbitration as a condition of employment.

As the Local 42 agreement shows, public-sector unions are also bending to that trend in their negotiations with government employers who are also looking to reduce their legal costs.

“Instead of the City of Kansas City doing the right thing, the hard thing, which is getting rid of management that continues to violate the laws, to set up real accountability and a system of checks and balances, they do backdoor deals to ensure that they can continue to violate the law and they take away a firefighters’ constitutional right to a jury trial,” Jess said.

“Firefighters risk their lives daily and this is how they are repaid. It is a sad day for employee firefighters in the City of Kansas City and everyone in this community. We should all be saddened by such an agreement.”

A ‘transformational’ contract

The arbitration clause went unmentioned when Mayor Quinton Lucas’ press secretary Jazzlyn Johnson sent out a news release on Aug. 15 headlined: “Mayor Lucas Celebrates Local 42 Bargaining Agreement Contract.”

“I am proud to work with Local 42 to come to a transformational and fair agreement, benefiting our first responders who put their lives on the line every day,” Lucas was quoted as saying in that release.

“We will continue to ensure we have a fire department that is equitable for all, adequately staffed, and with employees who are paid fairly. Not only will the new contract take care of our current first responders, but it will help us recruit the next generation of our community’s heroes.”

Among the contract highlights Lucas mentioned were an average wage increase of 14% in the first year of the agreement and a 26.7% average increase over its five-year term.

Lucas also cited incentive pay for working on an ambulance, increased staffing for dispatchers and additional diversity, equity and inclusion training.

He made no mention of Article 27, which includes the four paragraphs that take away the right of future members to file lawsuits over anything other than alleged violation of wage and hour laws, workers’ compensation benefits or retirement benefits.

The city refused to make a copy of the agreement publicly available at the time of its press release about the contract, stating that it first needed to be “executed,” but gave no explanation on what that entailed and when it would be accomplished.

On Wednesday evening, Johnson sent an email statement on behalf of the mayor’s office.

“Members of Local 42 voted to resolve disputes through arbitration, a speedier and more cost-effective way of addressing concerns, rather than lengthier and more expensive litigation that often takes years to get to a final outcome,” it said.

“Mayor Lucas is committed to ensuring the Kansas City Fire Department is an inclusive and equitable work environment for all.”

‘A huge problem with discrimination’

Lucas and City Manager Brian Platt have often touted the many steps that the city has taken under their leadership to combat discriminatory practices in the fire department since The Star’s December 2020 investigation on racism in the KCFD and subsequent DOJ civil rights investigation.

Those steps included the city commissioning a report on the fire department that revealed details of a toxic and discriminatory workplace culture and that said the union’s power and influence “prevent KCFD Management from holding personnel accountable for compliance with policies and practices.”

Also among the city’s steps have been new hiring initiatives, increased training, changes in the promotion process and more fairness in station transfers.

The city has said its aim has been to improve fairness within the workplace and reduce the payouts to settle a mounting number of discrimination lawsuits from firefighters.

The Star’s previous investigation found that the city had spent at least $2.5 million on legal settlements, court judgments, attorney fees and other court costs for those cases in the two decades before the report published in 2020.

Payouts have more than doubled since then. In the past year alone, taxpayers spent $2.8 million to settle fire department discrimination cases.

In September, the City Council approved a record $1.3 million settlement t o compensate a woman firefighter who had allegedly been subject to years of harassment. Two $350,000 payments were approved this summer to settle suits brought by men who said they had been passed over for promotion unfairly.

And a year ago, the city spent $800,000 to settle a lawsuit brought by an assistant division chief who said she was the victim of harassment.

More lawsuits are in the works by current or former fire department personnel who would not be affected by the mandatory arbitration policy in the Local 42 agreement.

The new contract language is unclear on whether the policy is effective as of next spring, or whether it must first be triggered by the city imposing arbitration on another class of employees. Honeycutt did not respond to two requests for clarification.

Either way, employee rights attorney Bert Braud of the Popham Law Firm finds the city’s approach problematic.

“Clearly, the city has a huge problem with discrimination in its fire department,” he said. “Instead of fixing the problem, they are trying to reduce exposure.”

Braud recently negotiated that $1.3 million settlement for his client, Rebecca Reynolds, who suffered years of harassment within the department, including an incident in which a co-worker urinated on her belongings while she was on leave.

“The best way to reduce exposure, however, would be to eliminate the bad behavior,” Braud said. “This arbitration agreement does nothing to fix or even address the problem, and is a slap in the face to the many many victims of discrimination at the fire department.”