Q & A

From Arizona

Question: Is it legal to require police officers to participate in physical fitness testing with age- and gender-biased standards in order to be eligible for desirable assignments? While the scores of such tests are said not to affect promotion oppurtunity, they are listed on promotion applications and passing the tests is required for select assignments. Service in the select assignments also has a positive effect on promotion likelihood, as the assignments count as points towards making the promotion list order.

The background, in short, is a 38-year-old male failing a 1.5 mile run, and is thus ineligible to be assigned as an assistant team leader for a tactical unit. If the officer was 40 years old, the run time posted would have represented a passing score by a significant margin.

Answer: To pass muster under discrimination law, a test with an adverse impact on a protected class must be both “job related” and “consistent with business necessity.” We’ve got serious questions about the legality under these standards of age- and gender-graded physical fitness tests. Your lawyers should check out Lanning v. Southeastern Pennsylvania Transportation Authority, 1998 WL 341605 (E.D.Pa. 1998). You’ll see the Court had serious issues with whether such tests were “job related” for the position of police officer. Even if they were job related, the example you give points out the very real question of whether the tests could ever be consistent with “business necessity.” How, for example, could a test be consistent with “business necessity” if another employee of a different gender or age could fail the test and still be considered qualified for the job?

From Alaska

Question: If a union-represented police department employee is interviewed for a potential crime committed en route to work (DUI) shortly after arrival at work, would that interview require representation under Weingarten? I do understand that Weingarten applies for criminal investigations, but it seems this application is focused on crimes committed as part of the job or at the job. I ask because it seems counterintuitive that if an employee was stopped en route to the job by an officer of his same agency, that a union representative would be called to the side of the road. As such, would being in the police department building change things?

Second question, if I may. If Weingarten is not afforded (union representation is not given) to an employee who is interviewed by a police officer of the same organization for a possible DUI violation en route to work (and no action was taken against that employee), what is the remedy for said employee? The employee was not disciplined and no administrative action was taken; therefore, was there really any loss to the employee?

Answer: You’re correct that the label (e.g., criminal versus disciplinary) put on an investigation by an employer is irrelevant to whether the right to representation exists under Weingarten. Rather, what matters is whether the employee reasonably believes that discipline could result from the interview. For much the same reason, the on-duty/off-duty dichotomy is also irrelevant. Again, what’s important is the employee’s belief as to whether discipline could result, and whether that belief is reasonable.

The situation you describe – a DUI committed while off duty – would seem to us to clearly be the sort of incident where the employee could anticipate discipline. It would be rare to find a law enforcement employer that would give employees a disciplinary “free pass” because a DUI or other crime occurred off duty.