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San Francisco firefighters prove new exam discriminated on age

A pattern seems to be emerging among public service agencies in San Francisco -- a pattern of age discrimination. As we discussed on this blog in September, a group of veteran San Francisco police officers filed have a class-action lawsuit over changes made in 2006 to the test required for promotion to inspector. They say the changes resulted in systematic age discrimination. That case has not been tried yet. Meanwhile, 15 San Francisco firefighters with a strikingly similar complaint were just awarded $3.7 million by a jury.

The firefighters, all over 40, challenged a 2008 change to the examination the department requires for promotion to lieutenant. Both the California Fair Employment and Housing Act and the corresponding federal law, the Age Discrimination in Employment Act, people over 40 can prove age discrimination in two basic ways.

First, they could point to direct instances of workplace age bias that harmed them. They can also prove it, however, by demonstrating that a certain policy effectively discriminates against older workers without serving a specific, important, job-related purpose.

This second form of age discrimination is what both the police and firefighters allege. In the firefighters’ case, the plaintiffs said that the lieutenant exam had traditionally been given orally. In 2008, however, the department implemented a written test and sprung it on them just before they took it.

This put older firefighters at a distinct disadvantage, because they were inexperienced with the strategies for success on written exams. They were used to the back-and-forth discussion and clarification available in an oral exam. Younger firefighters had been taking written exams throughout their careers, so that they were more able to correctly understand the scope of the questions and formulate appropriate answers during written test-taking. Those skills, however, did not indicate any greater knowledge of firefighting.

In what one of their attorneys called “sweet vindication,” a jury agreed that written test-taking skills have no bearing on whether a firefighter is fit to be a lieutenant. That jury awarded each plaintiff $108,000 plus back pay dating to the exam day.

One question still remains: should all 15 plaintiffs be promoted automatically or be given an oral exam? Unfortunately, the Fire Department destroyed their written tests before trial.

The city is considering its options, including an appeal.

Source: Courthouse News Service, “S.F. Firefighters Win $3.7M in Age Bias Case,” Dave Tartre, Oct. 31, 2013

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Law Offices of Allan A. Sigel, P.C.

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