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mvc6
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   Topic: Possible age or sex discrimination
Posted: 07 - Jun - 2012 at 9:04pm |
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My partner is a police Sgt at a state university in Ohio. She has 26 years experience and a bachelors degree in criminal justice. 2 lieutenants retired a head of her and she is in line to be promoted as the 1 st female lieutenant at this university. 3 weeks ago HR posted for the 3 lieutenant position . The posting stated the position required 4 months supervisor experience ( she has 15 years ) and a certificate of completion of Ohio peace officer training. Desired qualification were listed as bachelors degree in criminal justice( which she has.). She applied for the position along with 2 other sergeants, none of which have a bachelors degree. After the posting period ended. The chief of police sent a memo out tot the canadates that they will also need to pass a physical agility test. This was never a qualification In the history of the department for a promotion . Nor was it posted on the original job posting. The job description for this position is 75% supervisor ( desk job). 25% patrol. The physical agility test is geared toward SWAT. She has gone to HR and to the chief directly and asked why these roadblocks are now in place when they were not before. the chief told her " 1 job, 1 standard." The other 2 canadates are male and 40 & 41 years old. My partner is 54 and has had knee surgery 2 x. The chief also told her that if she didn't pass the physical agility test the 1 st time, she could take it again in 3 months, but if she failed it in 3 months, she could be terminated for not being fit for duty.
It is our feeling that he put this physical agility test in place to deter her from applying and/ or being successful in receiving the promotion . My question is- is this sex discrimination and can they change the qualifications after the posting period was over?
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ferretrick
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Posted: 08 - Jun - 2012 at 9:39am |
Just to clarify one point in your post-you are saying that
1) She is not required to pass this agility test in her current position?
2) What the chief told her is that if she applies, fails the test, doesn't get the promotion, retakes it in 3 months and fails again, not only will she not be promoted, she can be fired from the position she is already doing successfully?
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mvc6
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Posted: 08 - Jun - 2012 at 9:54am |
She was not required to pass an agility test when she was hired nor when she was promoted to seargant. Now all of the sudden the Chief is requiring a physical agailty test, geared toward 24 year old cadets. No accomidation was made for age or gender. He told her he could promote her to lieutenant even if she failed the agaility test the first tiem, that she would have 3 months to take it again, But if she failed it a second time, she could be terminated, She then asked him if she did not pass the 2nd agility test could she not just go back to her SGT position, he said "No, that position would already be filled and they would have no where to put her. She is afraid to proceed with the application for promotion for fear she could lose her job altogether.
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Elle
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Posted: 08 - Jun - 2012 at 12:01pm |
As long as the agility test is a requirement for all those applying for such a position, it is legal. Frankly I'd be very concerned about having someone in a position like that who could not pass an agility test. Public safety must come first. It seems that she is grandfathered in her current position which I have seen done many times (and we have that here as well) but for a position with greater responsibility, they need to make sure that the candidates are physically able to handle the rigors of the job. It doesn't matter if only 25% of the job is physical. That is an extremely vital 25%.
Courts have held time and again that employers, particularly in the health and puiblic safety industry, do not and should not lower the standards based on age and gender. If a firefighter has to be able to lift a ladder that weighs 50 lbs., it does not matter if they are male or female, 20 or 50. The ladder still weighs what it weighs and it still needs to be deployed in an emergency. You wouldn't want to be stuck on the 2nd floor in an emergency because the fire fighter who responded was not able to use the ladder to reach you. Same with a police officer. The requirements of the job don't change based on age or gender of the officer so the tests to determine fitness for that job won't either.
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mvc6
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Posted: 08 - Jun - 2012 at 12:31pm |
I understand what you ar sayin about the firefighter. But this position is traditionally a desk job. No other university police department requires a physical agility test not has this university until it was time for her to be promoted. Where I would think education, and supervisory training would be more important that how fast you can run a 100 yard dash. The part of the agility test she is questioning IS running the 100 yard dash in 17 seconds. The other 2 male candidates , both over 40, cant do it either. The fastest on was 18.5 seconds. So you are saying that because it is a new position, he can put up new standards. ( the current lieutenant did not have to do this.) That the chief can put this in place and if she goes through and still cant pass the test, he can terminate her? She went to HR about that and they would not give her a straight answer. Just that if she took the LT position, her SGT position would more than likely be filled and there would be no place for her. It just doesn't seem right.
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Elle
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Posted: 08 - Jun - 2012 at 1:14pm |
As long as those standards are applied across the board, it is legal. If she is the only person who has to pass the test and the males or those younger than she who apply do not, then it is discriminatory. In this case you have two younger males who are also being disqualified or potentially terminated for not meeting the standard set by the employer, therefore it can't be just due to her age or gender.
It doesn't matter of long ago it was required or if other police departments require the same or not. The law looks at is the test related to the job and is it applied fairly across age and gender lines. Since it is the same test given to all other officers for new positions, it is going to be very hard to demonstrate that it is totally invalid. Being able to run 100 yards appears entirely reasonable. I can't imagine a police officer on a college campus not being able to do so as most of those they are charged with protecting are able. This would be needed to respond to many different types of emergencies and to chase troublemakers.
Whether you think it should be a factor or part of the job is irrelevant. Employers have a wide degree of latitude to determine what duties employees must be able to perform. While education and experience are important, they don't trump physical ability.
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mvc6
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Posted: 08 - Jun - 2012 at 1:23pm |
I see your point. The standards were applied across the board to each candidate. And even though that standard was never a factor before it certainly is now. So the best thing for her to do is to stay where she a Sgt until she can pass the agility test or retire.. BTW-Does the fact that in the original job posting the physical agility test was not mentioned. The only requirement was to have a certificate as a peace officer in ohio and 4 months experience as a SGT. The agility test semed to be an after thought... just asking. Thanks for your input. It has been very helpful. Thank you for your input
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texls
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Posted: 08 - Jun - 2012 at 1:23pm |
"Just that if she took the LT position, her SGT position would more than likely be filled and there would be no place for her.
It just doesn't seem right."
I often caution people about this when they think they want a different position. I have to fill the old vacancy and if the new position doesn't work out, I can't just put them back in their old position.
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ferretrick
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Posted: 08 - Jun - 2012 at 1:56pm |
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No, the employer has the right to add or change the requirements of the job at any time.
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timk
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Posted: 08 - Jun - 2012 at 3:08pm |
I am going to take a devil's advocate position from some of the others
herein. While they are correct, a standard can be placed and it can be
changed.... I am going to argue that it could be evidence of discrimination. I have seen tons of cases where people did things in an attempt to obfuscate their discriminatory actions. In a discrimination case, you would carry the burden. You would need
to establish a prima facie case, which you can probably do. The
university would be responsible for showing a non-discriminatory reason
for the change, which they can probably do. Then you have to rebut that reason by
showing it is actually a pretext for the true discriminatory reason,
which is a heavy burden.
- Is there prima facie case? (The rule was implemented after the process and impacted your partner's consideration so PMC likely exists.)
- What was the bona fide occupational basis for this change? (One has been articulated to a degree so a non-discriminatory basis can likely be shown.)
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Can you rebut those with evidence that it is merely a sham reason to avoid promoting your partner?
- If it was a BFOQ then why was it changed suddenly after all this? (They might point to recent events at campuses and the need for all people to be able to respond.)
- Witnesses/Documents: Is there a witness saying the did this because they didn't want to hire your partner? Is there evidence of the discussion about your partner applying, etc.?
Remember also that even in emergency response cases where physicals have been required the EEOC has taken the position that it cannot lead to disparate impact. There must be a clear BFOQ for the given position, which requires more insight than your post can give.
Having said that: ...it is easy to get caught up on seniority and degrees when discussing promotions. We always believe our loved ones would be the best fit...however, hiring managers look at a much different picture. Hiring managers do consider degrees and experience but those are in line with other important issues. Things like the productivity in their experience, cooperation with the team, ability to achieve the needed results, how a team will respond, whether the person can make the transition successfully, etc.
You have to consider it at least possible that your partner would be passed over for other reasons even without the rule change.
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Elle
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Posted: 08 - Jun - 2012 at 6:34pm |
I agree with what Tim says but in a case where the new requirement affects both those younger and of a different gender equally, it is going to be VERY hard to argue that it was put in place simply to avoid having to hire your partner.
Add to that, the agility test appears to be a reasonable qualification on its face. Few of us would not want a police sargent to be capable of handling the physical aspects of the job. If they suddenly required an IQ test or other metric clearly not related to the demands of the job, that would be a different matter.
The only other avenue I see is if there is a union AND the CBA governs the use of such tests and this one is in violation. That would be a union grievance issue though and not really an EEO one.
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texls
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Posted: 08 - Jun - 2012 at 7:14pm |
Anything's possible. Proving it may be difficult.
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mvc6
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Posted: 09 - Jun - 2012 at 7:26am |
Update: After considering everything, especially the possibility of losing her postion in 3 months if she couldn't pass the agility test, she withdrew her application for the promotion. This morning, she received an email this the Chief letting her know that the 2 other candidates were promoted to Lieutenant effective immediately.He promoted these 2 men BEFORE they even took the agility test!!! It isn't even scheduled untill next Saturday! Can you explain to me how this is legal? the agility test was part of the requirement for promotion, - while she was in the running, but now it isn't? How is this not blatant discrimination?
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DAWW
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Posted: 09 - Jun - 2012 at 10:36am |
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You could be correct. The effected employee will need to talk to a local attorney who specilizes in this sort of thing. If nothing else, we have proof that the employer is an idiot.
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mvc6
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Posted: 09 - Jun - 2012 at 1:27pm |
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LOL! That is one thing for sure.!
Thank you for the input.
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ferretrick
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Posted: 11 - Jun - 2012 at 10:11am |
Based on your new post, I would say the case has just changed significantly. The fact that he awarded the position before this agility test was even given, but after the one female candidate withdrew, would be strong evidence to me that all along it was a pretext to intimidate your partner and discourage her from applying for promotion. I would consult with her union rep first if she has one, and then a local employment attorney, and see if you now have a stronger case.
If you haven't already, save all the e-mails you have and start to write a timeline of the events-when she was first told about this test, when she spoke to the chief and was told she might lose her current position, etc. State names and dates as close as you can remember, and stick to facts.
Edited by ferretrick - 11 - Jun - 2012 at 10:14am
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mvc6
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Posted: 11 - Jun - 2012 at 12:18pm |
We have saved the emails and are accumulating quite a paper trail. My partner went to HR again today and asked them if they were even aware that the Chief went ahead and promoted the 2 male cnadidates BEFORe the physical agility test. The HR rep said he was aware of it and that the Chief told him he had all the info he needed to promote the two males. He also re posted the 3rd LT position, openning it up to 2 other male SGTs who were disqualified from the 1st posting because they didn't dill out the application correctly. Neither one of these SGTs has a degree in CJ. Just out of curiosity, my partner started to apply for the position again because it was a new posting and there was no mention of the need for a physical agility test.- she was LOCKED OUT from applying! The reason being she had withdrew her application previously from the original posting and therefore could not apply for this one. HR either doesn't know what they are doing, and apparently dont seem to care either. I am very disappointed that an HR dept of a state university is run this way. I have worked for large hospitals and other big employers in the area and have nothing but praise for the impeccable way these people ran their departments. I know this is not the norm, I just don't know how to work with them to make this right.
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DAWW
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Posted: 11 - Jun - 2012 at 4:13pm |
Originally posted by mvc6
HR either doesn't know what they are doing, and apparently dont seem to care either.
Or perhaps does not actually run the organization. Even if HR knows what they are doing (and they might not), Very Senior Management often could not care less what HR tells them. The air gets very thin at the top.
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timk
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Posted: 11 - Jun - 2012 at 6:17pm |
Originally posted by mvc6This morning, she received an email this the Chief letting her know that the 2 other candidates were promoted to Lieutenant effective immediately. He promoted these 2 men BEFORE they even took the agility test!!! It isn't even scheduled untill next Saturday! Can you explain to me how this is legal? the agility test was part of the requirement for promotion, - while she was in the running, but now it isn't? How is this not blatant discrimination? First, this type of thing is something a plaintiff would point to as evidence that agility test while seemingly neutral was really a sham for discrimination. You should talk to the attorney.
Second, let me play devil's advocate for the university this time: Promoting someone before the test doesn't mean the test is irrelevant. It is possible if they fail the agility test they lose their jobs (just like your partner would have in 3 months.) Also, is it possible they obviously will pass it so it is not an issue? Like I pointed out earlier: It is possible your partner is being passed over for non-discriminatory reasons altogether. Too often employees think that because they have seniority and/or some qualification others don't (e.g., a degree in CJ) that they "deserve" the promotion. It just doesn't work that way. For example: I had to pick employees to let go in a RIF. I had to choose between "Jesse" and "Bill":
- Jesse had lots of experience, a degree and could support a broad base of client types.
- Bill had about the same experience but no degree and could only serve a limited type of client.
Jesse felt he deserved his "job" because of his experience, degree and broad customer support. I fired him and kept Bill.
You know why? Attitude. Jesse had a elitist and entitled attitude so he was prone to slacking if he did not agree with something. I could count on Bill - always!
So, I shifted clients Bill could not handle to the remaining employees. I then allowed Bill to "specialize" in a particular type of client, who BTW loved Bill.
We always believe our loved ones would be the best
fit...however, hiring managers often see a much different picture.
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timk
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Posted: 11 - Jun - 2012 at 7:12pm |
Originally posted by mvc6This morning, she received an email this the Chief letting her know that the 2 other candidates were promoted to Lieutenant effective immediately. He promoted these 2 men BEFORE they even took the agility test!!! It isn't even scheduled untill next Saturday! Can you explain to me how this is legal? the agility test was part of the requirement for promotion, - while she was in the running, but now it isn't? How is this not blatant discrimination? First, this type of thing is something a plaintiff would point to as evidence that agility test while seemingly neutral was really a sham for discrimination. You should talk to the attorney.
Second, let me play devil's advocate for the university this time: Promoting someone before the test doesn't mean the test is irrelevant. It is possible if they fail the agility test they lose their jobs (just like your partner would have in 3 months.) Also, is it possible they obviously will pass it so it is not an issue? Like I pointed out earlier: It is possible your partner is being passed over for non-discriminatory reasons altogether. Too often employees think that because they have seniority and/or some qualification others don't (e.g., a degree in CJ) that they "deserve" the promotion. It just doesn't work that way. For example: I had to pick employees to let go in a RIF. I had to choose between "Jesse" and "Bill":
- Jesse had lots of experience, a degree and could support a broad base of client types.
- Bill had about the same experience but no degree and could only serve a limited type of client.
Jesse felt he deserved his "job" because of his experience, degree and broad customer support. I fired him and kept Bill.
You know why? Attitude. Jesse had a elitist and entitled attitude so he was prone to slacking if he did not agree with something. I could count on Bill - always!
So, I shifted clients Bill could not handle to the remaining employees. I then allowed Bill to "specialize" in a particular type of client, who BTW loved Bill.
We always believe our loved ones would be the best
fit...however, hiring managers often see a much different picture.
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