LEGAL LIMBO: VOLUNTEER FIRE DEPARTMENTS AND FEDERAL DISCRIMINATION LAWS, PART 1–BASIC REQUIREMENTS AND COVERAGE
BY JOHN T. BENTIVOGLIO
Two federal discrimination laws–Title VII and the Americans With Disabilities Act (ADA)–have had a major impact on fire service personnel polices. Although these laws traditionally have not been applied to volunteer departments, this situation is rapidly changing.
As many volunteer departments have evolved from small-town, rural departments into sophisticated agencies–receiving public tax funds, providing haz-mat and other rescue services, and having members who receive workers` compensation and a variety of noncash benefits for service–a small but significant number of courts have ruled that volunteer fire departments must comply with federal employment laws.
Why should volunteer departments care? For one thing, defending against lawsuits can be expensive. Along with big-dollar verdicts, some laws allow successful plaintiffs to recover their lawyers` fees (which can run into the tens of thousands of dollars). A successful discrimination suit also can undermine the public`s trust in a department. Most importantly, compliance with these laws can improve a department. A department torn along racial or gender lines is not serving the community to its highest potential.
This two-part series discusses these federal discrimination laws from the perspective of the volunteer fire service. Part 1 identifies the major provision in each law and an analysis of when the law applies to volunteer fire departments. Part 2 offers straightforward tips on compliance with these laws.
TITLE VII
Title VII of the Federal Civil Rights Act of 1964 makes it illegal for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual`s race, color, religion, sex, or national origin.”1 Terms and conditions of employment refer to virtually every stage of the employment process, including recruitment, selection, hiring, compensation, promotions, transfers, discipline, firing, and retirement. Title VII prohibits several types of discrimination.
Intentional discrimination (disparate treatment). Employers are prohibited from taking virtually any job-related action against a person because of race, sex, religion, or national origin. Even if a department has no formal policy prohibiting women or racial minorities, a department`s decision to reject an applicant–in whole or in part–based on the person`s gender or race is a violation of Title VII. Evidence of intentional discrimination can include comments made at a membership meeting, the fact that the department has a small number of female or minority members, or a history of discrimination in the department.
Unintentional discrimination (disparate impact). Although Title VII prohibits intentional discrimination, it also prohibits employment practices that have a disparate impact on protected persons–regardless of the employer`s intent. Under Title VII, such practices are prohibited unless the employer can demonstrate that the practice is “job-related for the position in question and consistent with business necessity.”2
Sexual and racial harassment. Although sexual harassment is a form of intentional discrimination under Title VII, courts have developed separate rules for cases in this area–for example, unwelcome sexual advances or requests for sexual favors tied to employment decisions affecting an employee are prohibited. In addition, Title VII prohibits harassment that interferes with an employee`s job performance or creates an intimidating, hostile, or offensive working environment. While conduct that is merely offensive (such as a single derogatory remark) does not rise to the level of a Title VII violation, conduct that stops short of causing tangible psychological injury may still constitute sexual harassment.
Does Title VII Apply to Volunteer Fire Departments?
Title VII defines “employer” to include state and local governments, and many state and municipal career departments have been sued successfully for racial and gender discrimination. But does Title VII apply to volunteer fire departments–which, traditionally, have not been considered employers?
The majority of courts in nonfire department cases have ruled that Title VII protection does not extend to volunteers.3 However, in what appears to be the only reported case on point, a federal appeals court ruled that because of the nonmonetary benefits for volunteer firefighters and EMTs in Maryland–including length-of-service retirement benefits, insurance coverage, and other benefits–the question of whether the volunteers in this department were “employees” was a question of fact for the jury to decide.4 (A jury subsequently decided that the volunteers were not employees under Title VII.)5 The Fourth Circuit`s decision is binding only in Maryland, Virginia, North Carolina, and South Carolina; and it is unclear whether other courts will follow this ruling in light of the consistent rulings by other courts that volunteers are not employees under Title VII.
AMERICANS WITH DISABILITIES ACT
The ADA prohibits discrimination against “qualified individuals with disabilities” in all aspects of the employment process.6 As with Title VII, the ADA`s protections apply to all terms, conditions, and privileges of employment, including recruitment, hiring, promotions, training, and discipline.
Fire service managers must understand what is and what is not required under the ADA. The ADA does not require employers to hire or promote persons with handicaps who are not able to perform the basic requirements of a job or who are otherwise less qualified than other persons. At the same time, the ADA does prohibit employers from excluding whole classes of disabled persons–for example, persons with epilepsy, diabetes, or depression–from consideration for employment.
The ADA attempts to eliminate stereotypes about persons with disabilities from the employment process by giving persons with disabilities an opportunity to demonstrate that they can perform the essential functions of a job–with or without reasonable accommodation. If a person with a disability cannot perform the essential functions of a job with or without accommodation or if such person scores lower than other applicants on a test measuring job-related performance, the ADA does not require the employer to hire or promote the person with a disability. Moreover, the ADA does not require employers to lower job-related hiring standards. Each of the ADA`s central requirements is discussed below.
What disabilities are covered? An individual is considered to have a disability if he/she has a physical or mental impairment that “substantially limits one or more major life activities,” such as seeing, hearing, walking, breathing, or working. In suits brought by firefighters, courts have ruled that asthma, back problems, epilepsy, and diabetes are disabilities under the ADA.
Psychological disorders (including learning disabilities and emotional disorders) are included within the definition of disability. As noted above, the ADA requires employers to conduct an individualized, case-by-case assessment to determine whether a person with a disability can perform the essential functions of the job. Blanket exclusions of persons with certain types of disabilities –for example, asthmatics or epileptics–are prohibited under the ADA.7
Who is a qualified individual with a disability? To be protected under the ADA, a person must have a covered disability and be otherwise qualified for the job. Determining whether a person is “qualified” is a two-step process. First, the person must meet the necessary education, work experience, training, skills, and other job-related requirements for the job. Second, the individual must be able to perform the “essential functions” of the job with or without reasonable accommodation. For a firefighter, the essential functions of the job might include carrying a high-rise standpipe back up several flights of stairs or removing an incapacitated person from a burning building.8 On the other hand, a department could not refuse to hire a person because a disability prevents the person from performing tasks only marginally related to the job.
What accommodations, if any, are employers required to make? The ADA requires employers to make “reasonable accommodations” to enable persons with disabilities to perform essential job requirements. Such accommodations might include providing or modifying equipment that enables the person to perform the job or modifying work assignments. One fire department modified work assignments so that a firefighter who is not able to wear an SCBA due to a physical disability can function as an apparatus driver, in which position he is not required to use SCBA.
Employers are not required to make accommodations if doing so would impose an undue hardship on the employer. A big-city fire department might be able to modify staffing assignments so that a disabled firefighter could function exclusively as an apparatus driver and never be required to perform interior firefighting. However, this accommodation might not be reasonable for a rural or suburban department since the next-arriving apparatus may be several minutes (or longer) away and an apparatus driver may be required to perform interior rescue operations.
Does the ADA Apply to Volunteer Fire Departments?
Although the ADA and Title VII apply to private-sector employers and state and local governments, the ADA goes one step further and covers all “public entities.” The ADA`s
definition of “public entity” includes “any department agency, special purpose district, or other instrumentality” of a state or local government. Unfortunately, neither the statute nor the regulation states whether volunteer firefighters are covered, and no reported federal or state court case has addressed the issue.
The most definitive guidance is contained in a manual issued by the U.S. Department of Justice. The manual advises that there are no hard-and-fast rules as to whether volunteer fire departments are “public entities” and that the determination must be made on a case-by-case review of the following factors:
whether the department receives state or local tax monies,
whether the department`s employees are considered government employees,
whether the department receives significant amounts of property or equipment from the government, and
whether the department`s management (i.e., board of directors and chief officers) is elected by the public or appointed by government officials (as opposed to being selected by the department`s membership).
No single factor is determinative. Whether a specific department is or is not covered will depend on an overall analysis of the factors listed above. n
© 1995 John T. Bentivoglio
Endnotes
1. 42 U.S.C. Sec. 2000e-2(a)(1).
2. Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993) (strict “no beard” policy that impacted more on black firefighters was job related, was consistent with the needs of the fire department, and did not violate Title VII).
3. See, e.g., Graves v. Women`s Professional Rodeo Ass`n, 907 F.2d 71 (8th Cir. 1990); Tadros v. Coleman, 717 F.Supp. 996 (S.D.N.Y. 1989); Schoenbaum v. Orange Cty. Ctr. for the Performing Arts, 677 F. Supp. 1036 (C.D. Cal. 1987); Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987).
4. Haavistola v. Community Fire Co. of Rising Sun, 6 F.3d 211 (4th Cir. 1993). Interestingly, the Supreme Court of Nebraska ruled in 1993 that volunteer firefighters are not “employees” under a Nebraska law that is virtually identical to and patterned after Title VII. City of fort Calhoun v. Collins, 243 Neb. 528 (1993). Although the Nebraska decision is not binding on federal courts, its reasoning may have an impact in future cases.
5. 839 F. Supp. 372 (D. Md. 1994).
6. 42 U.S.C. Sec. 12112(a).
7. The ADA has made certain provisions of NFPA 1582 (1992) (medical requirements for firefighters) obsolete.
§ 3-12 of NFPA 1582 provides that “all seizure disorders” other than those that have been completely controlled during the previous five years are Category A medical conditions–automatically excluding such persons from being firefighters. The ADA, however, prohibits employers from categorically rejecting entire classes of persons with disabilities. Under the ADA, employers must make an individualized assessment of whether a person with a disability can perform the essential functions of a job with or without reasonable accommodation.
8. See EEOC Technical Assistance Manual on Title I of the ADA at 30 (Feb. 1992) (noting that while rescuing persons from a burning building might not be an everyday occurrence for firefighters, the consequences of not performing this task are so great that such ability is legitimately deemed an “essential function” of a firefighter`s job).
THE STATUS OF “COMBINATION” DEPARTMENTS UNDER FEDERAL ANTIDISCRIMINATION LAWS
Many “volunteer” fire departments employ one or more paid firefighters, frequently as apparatus drivers or dispatchers. In other jurisdictions, volunteer and career firefighters work side by side and in approximately equal numbers. The fact that these departments employ some paid firefighters may result in the departments being classified as “employers” under federal and state law–at least with respect to their paid personnel.
Frankly, the status of such departments under federal discrimination laws is not entirely clear. Most federal employment laws–including Title VII and the ADA–contain an exemption for employers with fewer than 15 or 20 employees (depending on the statute). Even the procedure for calculating the number of paid personnel can be complex because many departments hire personnel on a part-time or seasonal basis. The EEOC and federal courts have developed detailed (and sometimes conflicting) formulas for determining the number of employees in a particular workplace.
Volunteer fire departments should determine in advance whether the major federal employment statutes apply to their departments. When it comes to the possibility of large-dollar jury verdicts and awards of back pay and attorneys` fees, ignorance is not always bliss. n
–JOHN T. BENTIVOGLIO
JOHN T. BENTIVOGLIO is an attorney in Washington, D.C. and a volunteer fire/rescue sergeant and paramedic with the Bethesda-Chevy Chase Rescue Squad in Bethesda, Maryland.
