In 1981, the eeoc brought an action against the City of St. Paul, Minn., for age discrimination (eeoc v. St. Paul, 500 F.Sup 1135, 1980) on behalf of George Schultz, a district chief who was being discharged because of his age.

Evidence presented in court supported the fact that district chiefs were not expected to engage in interior fire suppression efforts. In fact, they weren't even required to drive their vehicles to the fire scene. The case would go on to find that there was no occupational requirement for the position of district chief that required the ability to perform firefighting duties.

More recently, in Hamlin v. Flint (No. 97-1026, 2105, 2129, 1999), the U.S. Court of Appeals for the Sixth Circuit ruled that the jury was correct in deciding that Assistant Chief Robert W. Hamlin was improperly discharged after suffering a heart attack. Hamlin argued that front-line firefighting was not an essential part of his duties. He provided evidence that he was "otherwise qualified" to perform the job and that Flint had failed to "reasonably accommodate" his disability and never demonstrated that the ability to fight fire was in his job description.

He received $500,000 in the verdict under the Americans with Disabilities Act and the Michigan Handicapper's Civil Rights Act. The U.S. District Court for the Eastern District of Michigan then granted Hamlin prejudgment interest of $7,098, plus costs and attorneys' fees.

The district court caused the case to go up on appeal when it reduced the jury award of attorneys' fees to $100,225 and then cut that amount in half. It also granted Flint's motion to offset the jury award by the disability pension that Hamlin had received, thereby reducing the damages awarded to zero.

Judge Ronald L. Gilman wrote that Flint had the legal burden of proving by a preponderance of the evidence that the ability to perform the physical duties of a firefighter was an "essential function" of the role of an assistant chief.

"The fallacy of Flint's argument is that the challenged jury instruction did not place the overall burden of persuasion on Flint," Gilman wrote, noting that the burden of proving an ada violation remained with Hamlin. "The instruction simply placed on Flint the burden of proving that firefighting was an essential function of Hamlin's job."

The jury instructions are consistent with the Sixth Circuit's 1996 decision in Monette v. Electronic Data Systems Corp. (90 F.3d 1173, 1996), Gilman said. He reasoned that the district court correctly applied Monette when it said Flint had the burden to demonstrate an affirmative defense under the ada.

Flint also argued that after his heart attack, Hamlin posed a direct threat to public safety because he was physically unable to engage in active firefighting duties. "Although Flint's arguments are not without weight, the district court correctly found that a genuine issue of material fact existed on this point that required submission to a jury," Gilman wrote. "[A]n employer is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk."

Rather than show that Hamlin's physical limitations created a high probability of harm, Flint "simply relied upon its own 'subjective perceptions' that all line officers in the fire department do nothing other than directly fight fires," the court said.

When examining physical performance requirements by rank, firefighting differs from law enforcement in one important factor. Police officers, regardless of rank, are sworn to intervene in any felony committed in their presence.

This finding was evidenced in the Binker case (eeoc v. Pennsylvania State Police, 829 F.2d 392, 1987, cert.den. 485 U.S. 935, 1988), where the court found in favor of the psp in an age case, noting that everyone, from the most junior trooper to the superintendent, wearing a badge and carrying a gun has responsibilities that transcend age.

It's critical that management has a clear definition of each position's physical performance expectations. This is accomplished with a job-task analysis. The process need not be overly complicated, but you may want to consult with a personnel standards development professional. Think of it as insurance. If you can thwart a potential legal problem downstream for a moderate cost, do it.

The fire service is renowned for how it shares information. Programs within the fire service are widely published, imitated and become a part of the public domain. Although common, borrowing programs and policies comes with its own set of risks and problems.

For example, if the town next to you is using an applicant testing program that seems suitable for your department's use, be advised that "following the leader" is no guarantee that the program is legal. And just because the "big guys" are doing it doesn't mean that it's correct. Under the law, you're responsible for the consequences of your actions, and citing the actions of others is not a valid defense.

Leading the list of causes of death at a fire scene is heart disease. In fact, the relationship between firefighting and heart attack is so pervasive that many states have protective covenants that provide benefits under presumptive laws. Possession of a healthy cardiovascular system is expected and critical to an occupation that places such heavy demands on its employees.

Medical research has made significant inroads in the diagnosis and treatment of heart disease, including new data that supports the notion that heart disease may originate from bacteria. There's still a ways to go, and in the meantime fire executives will need a plan to make intelligent and informed decisions on employability after a heart attack.

If we've learned anything from the lawsuits that have been brought over Age Discrimination in Employment Act and adea issues, it's that we'll have to apply our understanding of the law and the facts on a case-by-case basis. We must have policies that clearly delineate our expectations in objective and meaningful ways. And finally, we need to ensure that all standards - medical and physical - are reasonably tied to the job.