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Does your department require you to live within the boundaries of your city, municipality or community in order for you to keep your job or to be eligible to be hired?

These rules are called RESIDENCY REQUIREMENTS affecting public safety officers and certain critical staff to live in or close to the community where they work.

Generally, residency requirements have been upheld and deemed to be constitutional by Federal Courts so long as the employing jurisdiction has demonstrated some "rational" basis for the provision. However, many departments have removed the residency requirements in their communities for many reasons which may include economic factors or legal issues preventing residency requirements.

In a recent decision in Akron Ohio, the 3rd U.S. Circuit Court of Appeals affirmed that a fire department’s residency requirement for firefighter candidates violated Title VII of the Civil Rights Act due to its disparate impact on black applicants. This is one of many court rulings finding in favor of public safety officers against a residency requirement.

In a more complicated version of a ruling against residency requirements, with a disparate impact on a protected class, is found in a 2011 case, NAACP v. North Hudson Regional Fire & Rescue, 3rd Cir., No- 10-3965 (Dec. 12, 2011). New Jersey permits local governments to give a hiring preference to their own residents and numerous municipalities do so; including North Hudson, N.J.  The New Jersey Department of Personnel (NJDOP) created “residents-only lists” for North Hudson and North Hudson never saw the names or scores of ineligible nonresident applicants. After a candidate was selected from the residents-only list, North Hudson verified the candidate’s residency at the time of hiring. Once the candidate had been hired, however, he or she may live anywhere and some North Hudson firefighters live as far as 60 miles away. The demographics of North Hudson in 2000, was predominately Hispanic and White with an extremely small percentile of black residents. The fire department employed 302 firefighters, predominately white with a smaller number of Hispanic and only two blacks. The Newark branch of the NAACP in April 2007 sued North Hudson alleging that its residency requirement caused a disparate impact on black applicants. The fire department argued that the NAACP failed to establish a causal relationship between the residency requirement and the statistical disparity in its black employees and North Hudson claimed that it had established the business-necessity defense.

Remembering, Title VII’s disparate impact provision prohibits employment practices that have an unintentional effect of discriminating based on race, the plaintiff must demonstrate that “application of a facially neutral standard has caused a significantly discriminatory hiring pattern.” The employer may defend against a prima facie showing of disparate impact only by demonstrating that the challenged practice is “job related for the position in question and consistent with business necessity.” Finally, a plaintiff can overcome an employer’s business-necessity defense by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.

The conclusion of the North Hudson case found that even though the City claimed that residency was essential to its fire department operations because it increased the likelihood that its firefighters would be able to respond to emergencies more quickly because they will be more familiar with the buildings and streets in the served community and residency fosters community pride, the court determined it as “an insufficient justification for a discriminatory hiring practice.

The final failure in North Hudson’s case was the court indicates the department did not require its firefighters to reside in the community after they were hired.

An example of a business necessity defense, upheld by an 11th Circuit Court decision in a disability claim, was when an applicant with a hearing impairment filed suit claiming discrimination under the Americans with Disabilities Act (ADA) because the U.S. Marshal Service required hearing as a requirement to get a job. The hearing impaired plaintiff argued that an accommodation under the ADA was the wearing of a hearing aid.  The US Marshal Service used the business necessity defense as the reason he was not hired and the US Marshal successfully argued that wearing a hearing aid as an accommodation would not work because the hearing aid could fall out, or malfunction, causing safety risks for their customers, therefore, it was a "business necessity" that anyone in this job must be able to hear without the use of a hearing aid. These requirements can also be termed bona fide occupational qualifications (BFOQ) requirements which are qualities or skills the employer is allowed to consider when making hiring decisions with the exclusion of those without those qualifications. Those qualifications must be listed in the employment offering such as age, valid driver’s license, EMT or Paramedic certification, or Firefighter I or II qualifications in order to be considered for hiring.

In Washington State, the residency requirement was a major issue for firefighters and cops in the 1960’s and 1970’s where many departments had imposed a residency requirement. After many contentious years between the employer and firefighters and police officers, the legislature enacted RCW 41.08.075 Residency as condition of employment — Discrimination because of lack of residency — Prohibited:  due to the discriminatory practice for all classes of firefighters, police and others (unless the employer can demonstrate a critical need)  which states:

No city, town, or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter or under any local charter or other regulations described in RCW 41.08.010 to reside within the limits of such municipal corporation as a condition of employment, or to discriminate in any manner against any such person because of his or her residence outside of the limits of such city, town, or municipality.

It is interesting that some Labor Unions have negotiated a residency requirement in their bargaining agreements which now become a matter of fierce negotiation with the employer to have them removed or modified.

Michigan also has a similar rule under 15.602 Residency requirements of public employees with an exception for Volunteer Firefighters.

Under Sec. 2.

(1) Except as provided in subsection (2), a public employer shall not require, by collective bargaining agreement or otherwise, that a person reside within a specified geographic area or within a specified distance or travel time from his or her place of employment as a condition of employment or promotion by the public employer.

(2) Subsection (1) does not prohibit a public employer from requiring, by collective bargaining agreement or otherwise, that a person reside within a specified distance from the nearest boundary of the public employer. However, the specified distance shall be 20 miles or another specified distance greater than 20 miles.

(3) A requirement described in subsection (2) does not apply to a person if the person is married and both of the following conditions are met:

(a) The person's spouse is employed by another public employer.

(b) The person's spouse is subject to a condition of employment or promotion that, if not for this section, would require him or her to reside a distance of less than 20 miles from the nearest boundary of the public employer.

(4) Subsection (1) does not apply if the person is a volunteer or paid on-call firefighter, an elected official, or an unpaid appointed official.

In spite of the precedent setting activities in other states and local government, residency requirements continue in Morgantown, West Virginia as late as 2013 where the Morgantown Fire Civil Service Commission, by a 2-1 voted to approve an amendment to the Residency Requirements in which the Commission expands the residency requirements for members of the Fire Department from 15 to 30 air-miles.

Of course there are arguments from both the employer and employee which are generally lumped into three seemingly simple arguments which include economic, legal and the practical.

Not in any order of priority, residency requirements can prevent qualified applicants from applying for jobs as the pool of qualified applicants may be extremely small in your community; there are the economic considerations where your salary may not be adequate to purchase a home and raise a family in the municipality where the cost of housing may be less in the suburbs or county. There are always the liberty interests under the Due Process clause of the US Constitution. The Due Process Clause serves two basic goals: first to produce, through the use of fair procedures to prevent the wrongful deprivation of liberty interests and second, to make people feel that the government has treated them fairly by hearing their side of the story.  Among the 14th Amendment Equal Protection Clause prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances HOWEVER; some cities are charter cities and have the authority to create ordinances and requirements affecting the employment of their personnel. Other arguments include a restriction of your freedoms of travel and Discrimination under Title VII which we have seen in numerous cases of disparate impact for protected classes.

Regardless of the reason, firefighters must be aware of possible residency requirements many cities and jurisdictions continue to impose on their employees which may be a condition of employment.

Endnotes:

1 NAACP v. North Hudson Regional Fire & Rescue, 3rd Cir., No- 10-3965 (Dec. 12, 2011)

2.Roger S. Achille  1/9/2012. http://www.shrm.org/legalissues/federalresources/pages/3rdcircuitresidencyrequirement.aspx

2. Title VII of the Civil Rights Act

3. Business Necessity Defense

4. Bona fide Occupational qualifications

5. RCW 41.08.010

6. Michigan 15.602 Residency requirements of public employees

7. Morgantown (W.Va.) Fire Civil Service

8. Due Process Clause – US Constitution

9. 14th Amendment Equal Protection Clause

John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2012. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as a subject matter expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio, a FDIC and National Fire Academy instructor and a national speaker on fire and EMS legal issues.

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