Burning Question: Are you staying or leaving

Today’s burning question: Can a senior officer ask a firefighter his/her intentions on whether they plan to stay or leave the department? Does it matter if the officer is asking the question around the time the department is considering personnel for promotion? Would this qualify as harassment or discrimination?

Answer: I cannot help but feel there is a lot more to your questions than you have given me, but let’s answer the questions as posed. There is no law that prohibits an officer from asking a firefighter about his/her future plans. There is nothing inherently harassing nor discriminatory in the question itself. While not advisable, there is nothing inherently illegal if the question is asked in the context of a formal promotional interview, assuming it is asked of all candidates. An alternative way of asking that very same question that is commonly used in many employment interviews is: “Where do you see yourself in five years?”

However, context is everything.  If the question is asked outside of the promotional interview process by someone who is a decision-maker in the process, it raises a number of troubling questions, not the least of which is whether the officer plans to use the answer in making the promotional decision.

Promotions in many jurisdictions are required to be based upon merit principles, and/or a set criteria (eg. exam score plus seniority). Taking the candidate’s answer about future work plans into account could violate civil service laws, collective bargaining agreements or departmental rules. There is a principle in employment law that if a question is asked during an interview, it is presumed that the answers will be considered as part of the decision making process. Therefore, just asking about a candidate’s intent to remain with the department could pose a legal problem under certain circumstances.

Asking such a question could be even more problematic if done for inappropriate or discriminatory reasons. For example, if Chief A wants to eliminate FF B as a promotional candidate so that FF C can advance, the fact that Chief A asks FF B about his intention to remain with the department could be used to show a bias in favor of C. Factor in race, gender, religion, age, disability, or other protected status and we have a strong inference of discriminatory intent on Chief A’s part. Think about the implications of such a question – even if asked of all candidates – where some are approaching a mandatory retirement age? Factor in family ties between Chief A and FF C and we have allegations of nepotism on Chief A’s part. Factor in friendship between Chief A and FFC and we have allegations of favoritism.

Each of these possibilities suggest that Chief A opens up a Pandora’s box of issues merely by asking the question. However, if Chief A is a non-decision-maker relative to the firefighter, and the question is asked as part of normal firehouse conversation, there is nothing inherently illegal, harassing or discriminatory in the question. It is all about context.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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