LEGAL LIMBO: VOLUNTEER FIRE DEPARTMENTS AND FEDERAL DISCRIMINATION LAWS, PART 2–COMPLIANCE ISSUES BY JOHN T. BENTIVOGLIO
Part 1, which appeared in the March issue, identifies the major provisions in each law and when the law applies to volunteer fire departments. Part 2 offers straightforward tips on compliance with these laws.
Title VII and the Americans with Disabilities Act (ADA) prohibit discrimination at virtually every stage in the employment process–from recruitment and selection of new employees to discharge and retirement decisions. These stages have rough equivalents in the membership practices of most volunteer departments.
RECRUITMENT
Volunteer fire departments employ a variety of means to recruit new members, including word-of-mouth, providing applications to “walk-ins,” and recruiting the family and friends of current and former members. None of these practices, per se, violate federal law. However, if such policies are used to intentionally discourage women, minorities, or qualified persons with disabilities from applying, these policies would violate federal law.
SELECTION OF NEW MEMBERS
Written applications and interviews. Departments can require applicants to provide a wide variety of information in a written application or an oral interview. Applicants may be required to state their age, gender, educational background, and prior work experience during the application process. Questions can–and should–be asked about their driving and criminal records, if any. However, questions about marital status, race, and religion generally should be avoided under Title VII, since they are not job related and could be used for discriminatory purposes. Also, departments should not distribute pictures of applicants prior to the membership`s vote.
The ADA imposes a number of additional limitations on the information that can be gathered during the application process. The ADA prohibits employers from conducting preemployment medical examinations and asking whether a person has a disability or about the severity of a disability. Also, employers may not ask about an applicant`s prior medical history, whether the applicant uses prescription or other legal drugs, or whether the employee has previously filed claims for workers` compensation. Medical examinations can be conducted after an offer of employment is made (see “Medical Examinations” below).
Aptitude and skills testing. Under the ADA, fire departments may not administer aptitude or screening tests to persons with impaired sensory, manual, or speaking skills unless the test is designed to measure that skill. A test that requires the use of the DOT Hazardous Materials Guidebook probably would be acceptable even if it excludes persons with learning or other disabilities, whereas a lengthy reading comprehension test (which is not job related for firefighters) probably would violate the ADA.
Height and weight standards. Departments may impose maximum height and weight standards for new applicants and current employees since such requirements do not adversely affect women, racial minorities, or persons with disabilities. A California appeals court ruled that the Los Angeles (CA) Fire Department did not engage in unlawful discrimination when it suspended a paramedic for failing to meet a departmental weight standard.1
Minimum height and weight requirements, however, are a different matter. A Los Angeles County requirement that firefighters be at least five feet seven inches tall was found to violate Title VII because it excluded a disproportionate number of Mexican-American applicants and was not shown to be job related.2 A minimum weight requirement also might violate Title VII since it tends to exclude more women and is not job related.
Arrest and conviction records. Title VII places limits on how arrest and conviction records may be used in the employment process. Several courts have ruled that where a hiring policy that automatically rejects applicants with an arrest or conviction record has a disproportionate impact on racial minorities, such a policy violates Title VII.3 A fire department can reject applicants with recent convictions involving violence, possession and sale of illegal drugs, or crimes involving dishonesty (such as theft or embezzlement). Departments should be more careful with respect to arrest records (which involve a mere allegation of wrongdoing) and conviction records for petty offenses or offenses that were committed in the distant past. (See “Employee Background Checks: Walking the Fine Line,” Fire Engineering, August 1995).
Alcohol and drug use. Under the ADA, a volunteer fire department could not impose a blanket exclusion on persons with a history of alcoholism or drug abuse on the grounds that such persons, as a group, might pose a direct threat to themselves or others. Instead, a department must make an individualized determination that a specific applicant or member might pose such a risk based on the specific situation.
Fire departments, however, are not required to tolerate alcohol- or drug-related conduct that affects on-duty performance. Under the ADA, volunteer departments can prohibit the use of alcohol and drugs at the fire station, prohibit members from being under the influence of drugs or alcohol while on duty, and hold members who use illegal drugs or alcohol to the same qualification and job-performance standards as other members. Recently, two federal courts have ruled that an employer can take action against an employee for off-duty drunk driving convictions even if driving is not an essential part of the job.4
Affirmative action. Title VII prohibits discrimination based on a person`s race, gender, national origin, or religion. In a recent decision, the Supreme Court ruled that affirmative action programs may violate antidiscrimination laws, at least where they are not tied directly to prior discrimination.5 Although the decision involved a preferential contracting program, the U.S. Department of Justice has indicated that the reasoning applies to the employment area.
MEDICAL EXAMINATIONS AND PHYSICAL FITNESS TESTS
Medical examinations. The ADA prohibits employers from requiring applicants to undergo medical examinations before an offer of employment is made. Similarly, employers are prohibited from making inquiries as to whether an applicant is disabled or about the severity of a person`s disability. During the preoffer stage, an employer may ask applicants whether they are capable of performing the essential functions of the job, with or without reasonable accommodation, and may require applicants to demonstrate how they would perform such tasks.6
After an offer of employment has been made, however, an employer may require an applicant to undergo a medical examination and may condition the offer on the results of the test, but only if medical examinations are required of all incoming employees and not just of persons with disabilities. Also, medical examinations must not use criteria that screen out persons with disabilities unless the criteria are job related and cannot be resolved through reasonable accommodation.
Physical agility tests. Fire departments may require applicants to pass physical agility tests that assess an applicant`s ability to perform actual job-related behaviors such as carrying a standpipe pack up several flights of stairs or climbing an aerial ladder in turnout gear–even if women fail the test more frequently than men. However, a department may not use tests that tend to screen out more women if the tests require applicants to perform tasks that are not job related. Female applicants have successfully challenged fire department entrance examinations that require applicants to perform a minimum number of pull-ups, arguing that such tests are not job related (firefighters rarely have to do pull-ups on the fireground) and exclude women more frequently than men.
One expert recommends that physical fitness tests be graded on a pass-fail basis. A pass-fail system differentiates between those who can perform the essential functions of the job and those who cannot while minimizing the disparate impact physical fitness testing can have on female candidates. (For a more complete discussion, see Fred M. Rafilson`s article “Legislative Impact on Fire Service Physical Fitness Testing,” Fire Engineering, April 1995).
Significantly, employers may not establish different physical fitness standards for men and women. The 1991 Civil Rights Act provides that “[i]t shall be an unlawful employment practice…to adjust the scores of, use different cut-off scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin.”7 Although this change applies to all forms of testing, it may have its greatest impact on fire departments that have established separate physical fitness standards for men and women.
Although physical fitness tests are not considered to be medical examinations under the ADA (and, therefore, may be administered before an offer of employment is made), the ADA does impose certain limits on physical fitness tests. Before rejecting an otherwise qualified person with a disability due to the inability to perform a particular job-related task, an employer must determine whether a reasonable accommodation is available that would either enable the applicant to perform the task or eliminate the need for the applicant to perform this task if hired.
Drug testing. Drug tests are not construed as medical examinations subject to ADA restrictions, and employers may administer such tests and use the results as a basis for disciplinary action. Information about an employee`s medical condition revealed through drug tests must be treated as a confidential medical record.
HARASSMENT ON THE JOB
Federal discrimination laws have a direct impact on an employer`s obligations with respect to conditions in the workplace. As noted in Part 1, Title VII prohibits workplace harassment on the basis of sex, race, color, or national origin. One court has ruled that harassment based on a person`s disability may constitute discrimination under federal law.
There is no all-inclusive definition of harassment. The courts have offered important guidance on what does and does not constitute workplace harassment. First, it is clear that an employer may not condition an employment decision (a promotion or pay raise) on a worker`s submission to, or rejection of, an unwanted request for sexual favors.
Second, harassment may occur where unwelcome sexual conduct interferes with an employee`s job performance or creates an intimidating, hostile, or offensive environment in the workplace. Harassment under Title VII requires more than a single, isolated sexist remark but does not require the employee to have suffered psychological injury. The Supreme Court has stated that the factors determining whether specific conduct constitutes harassment include the following: (1) the frequency and severity of the discriminatory conduct, (2) whether it is physically threatening or humiliating (or merely an offensive off-hand remark), and (3) whether it interferes with an employee`s work performance.8
A strong policy against workplace harassment can help shield a fire department from liability under Title VII. A federal appeals court recently ruled that a governmental agency was not responsible for the acts of a supervisor who harassed an employee on the job, largely on the basis of the agency`s strong antidiscrimination program.9
This case demonstrates the merits of a strong antiharassment policy. Fire departments should adopt a policy that, at a minimum, does the following: (1) prohibits unwelcome physical conduct between employees; (2) prohibits discriminatory or sexist comments by employees, particularly supervisors; (3) establishes a procedure under which employees can complain about offensive conduct before such conduct reaches a level that creates a hostile work environment; and (4) provides for consistent and prompt enforcement of the policy.
DISCIPLINE AND DISCHARGE
Many employment discrimination suits arise when an employee is fired or subject to disciplinary action. The protections against discrimination on the basis of sex, race, color, religion, national origin, and disability in Title VII and the ADA apply with full force to disciplinary actions.
Every fire department should have a written policy that describes the basic steps of the disciplinary process. The policy should specify what types of conduct can lead to specific forms of punishment. Such guidance can prevent the imposition of harsher punishments based on the personalities involved in the specific incident. Moreover, before any significant punishment is imposed (including lengthy suspension or dismissal), the firefighter should be notified of the specific charges involved and given an opportunity to explain.
The disciplinary process must be consistently and fairly enforced. Nowhere is documentation more important than in the employment context. Written records should be kept of all personnel actions, including (where possible) a description of the facts on which the department relied in taking a specific disciplinary action.
RETALIATION
The rights protected under the federal employment laws would have little meaning if employers could punish employees for taking advantage of those rights. Therefore, every federal employment law explicitly prohibits employers from retaliating against employees who invoke their rights under the law. In some cases, a finding of retaliation may subject the individual to personal liability, including civil fines and criminal prosecution.
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Historically, federal discrimination laws have had little impact on the volunteer fire service. That situation is changing rapidly, however, as Congress and the courts continue to expand the reach of these laws into nontraditional workplaces and as the volunteer fire service continues its evolution into a more professional service. Progressive departments will see that compliance can decrease their department`s liability to costly lawsuits while creating a workplace that takes advantage of the diverse backgrounds and capabilities of today`s volunteers. n
© 1995 John T. Bentivoglio
Endnotes
1. Hegwer v. Civil Serv. Comm`n. of Los Angeles, 2 AD Cases 164 (Calif. Ct. App. 1992).
2. Davis v. County of Los Angeles, 13 FEP Cases 1217 (9th Cir. 1976), aff`d in part and remanded, 566 F.2d 1334 (9th Cir. 1977).
3. See, e.g., Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C.D. Cal. 1970), modified on other grounds, 472 F.2d 631 (where policy that automatically rejects applicants with arrest records has a disproportionate impact on racial minorities, the policy must be justified by business necessity).
4. Maddox v. University of Tennessee, 1995 U.S. App. LEXIS 23043 (6th Cir., Aug. 21, 1995) Despears v. Milwaukee Cty., 1995 U.S. App. LEXIS 23916 (7th Cir., Aug. 21, 1995).
5. Adarand Constructors, Inc. v. Pena, 63 U.S.L.W. 4523 (June 12, 1995).
6. See generally 42 U.S.C. Sec. 12112(d) and 29 C.F.R. Sec. 1630.13(a).
7. 42 U.S.C. Sec. 2000e-2(L).
8. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
9. Gary v. Long, 1995 U.S. App. LEXIS 19976 (D.C. Cir., July 28, 1995).
