By John Kottmyer, BS, EMT-P, VFIS Risk Control Representative
Throughout the history of emergency service organizations (ESOs), many members have been elected to membership by a voting process. However, federal laws and the protected classes have created an avenue for applicants who believe they have been the victim of discrimination in the membership application process. Such cases continue to be reviewed and case law established causing concern for ESOs and traditional selection methods. Now may be the time to review your current membership application process with your legal counsel.1
When the voting method was first utilized to approve new members, it was thought to be a fair way of voting your conscience without fear of retribution from other members during the process, especially if you did not feel a candidate should become a member. Technology and other resources available today were not present at that time to conduct thorough background investigations and reference checks of each candidate. ESOs are fraternal organizations and members need to trust the person working beside them, especially given the gravity of the profession. This is understandable. However, voting in new members does not always guarantee the desired result. The voting process does not assure the new member can perform essential functions of the job.
Laws have been enacted since the first days of voting in new members. For example, Title VII of the Civil Rights Act of 1964 provides laws against many forms of discrimination.2 What does this mean for the ESO still voting on new members? To simplify, there are laws that did not exist when the voting process was first utilized as a means of selecting new members. What may be perceived as an honest and equitable method of voting on new members by the membership may not be the same perception of the candidate. Think about this from their perspective.
In Title VII cases, the court will determine if an employee/ employer relationship exists and is dependent upon the laws applied. The U.S. Sixth Circuit Court applied a different test to determine the employer/employee relationship and found the relationship in specific cases does exist. It is also unclear with each case what direction the prosecution may take and how the court will interpret the information. This is not intended to say the voting process is illegal, but more to show the process is being tested in court and becoming case law.3 For your department, if the voting process is the only method for selecting new members, it may open your department up to accusations and place the department in a position to defend your method of selecting new members, ultimately leading to litigation. Now is a good time to review your policy.
What changes do we make to protect ourselves and maintain an equitable standing in our community? Consider making changes from a subjective to a more objective approach for selecting members. This could include written job descriptions and written qualifications for any position. It may also include an interview process, a medical examination, criminal background and reference checks as well as a defined probationary period to evaluate the candidate. VFIS has several resources which could assist with revising current procedures. It is recommended this process be reviewed by your legal counsel prior to implementing any changes.
1 Voting in Members and Discrimination in Volunteer Fire Companies. J Curtis Varone, Esq.
2 McDonnell Douglas v. Green, 411U.S. 792 (1973)
3 Bryson V. Middlefield Volunteer Fire Department and the Changing Understanding of V