Membership Voting & Discrimination in Volunteer Fire Companies

The history of organized firefighting in the United States dates back to the 1700s with the formation of Mutual Fire Societies, organizations of neighbors volunteering with each other to combat fires. According to Dennis Smith’s book, The History of Firefighting in America: “The Mutual Fire Societies became social as well as protective associations, setting a pattern for organized volunteer firefighting groups, which would one day be the backbone of firefighting in America and would dominate it for a century and a half.”

These organizations were created independently from local government as membership associations and eventually corporations. Membership in these organizations was treated like any other decision and handled in accordance with parliamentary procedures. Voting in new members was in accordance with the social and fraternal nature of these organizations.

Many volunteer fire companies continue to carry on a tradition of admitting new members through a parliamentary-based voting process. Most utilize a voting process to elect organizational officers (president, vice president, secretary, etc.), and some elect operational positions (fire chief and line officers) as well.

The problem

Laws at the federal, state and local levels prohibit discrimination in a variety of contexts, including employment, public accommodations and service delivery. These laws create a patchwork of protections available to someone who believes that he or she has been the victim of discrimination.

As a result, discrimination suits have been filed by unsuccessful applicants to volunteer fire companies challenging a membership vote. When challenged, fire companies commonly raise a number of affirmative defenses, including:

First Amendment—freedom of association;
Volunteers do not meet the definition of an employee under a given employment discrimination law, or the volunteer fire company may not meet the definition of an employer under such a law; or
Volunteer fire companies do not meet the definition of an entity subject to the discrimination law (i.e., not a public sector entity; not engaged in interstate commerce; not offering a public accommodation; a fraternal organization exempt from discrimination laws¹).

These affirmative defenses have met with varying degrees of success based upon the particulars of each case.

The bigger question that confronts volunteer fire companies: Given society’s abhorrence of anything perceived to be discriminatory, should voting continue to be used as a mechanism to admit new members? Said another way, does the use of voting to admit new members expose a volunteer fire company to an unnecessary risk of litigation?

The law

There is nothing inherently illegal with a private membership organization, such as a volunteer fire company, using voting to admit new members. The problem arises when a protected class member is denied membership.

While certainly subject to vigorous defenses, a volunteer fire company facing a discrimination claim over a membership vote will be in for a long and expensive journey through an administrative investigation process overseen by the U.S. Equal Employment Opportunity Commission (EEOC) or a state human relation’s commission. Once that process is complete, there awaits an even longer and inevitably more expensive journey through the court system.

A key point: The risk to the volunteer fire company is not dependent upon the membership having committed intentional discrimination. Any organization guilty of intentional discrimination should be held accountable, and nothing in this article should be misunderstood as an effort to defend such a practice.

The concern here is that a volunteer fire company that denies a protected-class applicant membership through a voting process finds itself in a very difficult position in defending its action. The challenge is rebutting the “inference of discrimination” that is created when a member of a protected class is denied membership. That inference is a function of the way our courts apply the burden of proof in discrimination cases.

Disparate treatment and disparate impact

Discrimination allegations fall into two categories: disparate treatment and disparate impact.

Disparate treatment discrimination occurs when a person or group are treated differently because of a prohibited classification, such as race, ethnicity, national origin, religion, gender, age or disability. Proof of disparate treatment requires proof that a decision, action, or pattern of behavior was directed at a particular person or group of people because of their race, sex, religion or other prohibited classification. Disparate treatment discrimination is based upon an intentional act of discrimination.

Disparate impact discrimination occurs when an adverse decision appears to have been made for nondiscriminatory reasons, but has the effect of discriminating. Disparate impact discrimination is proven through statistical analysis. In these cases, it may be difficult, if not impossible, to clearly identify the specific reasons for the statistical difference, and just as impossible to prove that the discrimination was intentional.

For example, an entrance examination used for a particular job, or neutral-appearing prerequisites, may have a tendency to eliminate minority or protected class candidates more frequently than white males. Irrespective of the employer’s actual motivations for using such an examination or prerequisites, when the statistics show that a protected class has been unlawfully impacted, the disparate impact theory will apply.

Membership voting and discrimination

In the membership-voting context, both types of discrimination may be implicated. Disparate treatment discrimination may appear to be less of a concern than disparate impact discrimination given the difficultly in proving the individual reasons why each member voted against a certain person. The problem is the courts have developed a burden-shifting analysis that makes defending the fire company quite difficult.

An unsuccessful applicant (plaintiff) will often lack direct evidence of intentional discrimination and will seek to establish discriminatory intent by inference. This “intentional discrimination by inference” was first approved by the U.S. Supreme Court in the case of McDonnell Douglas v. Green, 411 U.S. 792 (1973). The McDonnell Douglas three-step burden-shifting formula applies as follows:

The plaintiff must establish a prima facie case of discrimination by showing membership in a protected class, that he/she is otherwise qualified for the position, and that despite being qualified he/she has been denied the position.
The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for its actions.
If the employer is successful in showing a legitimate, nondiscriminatory reason for its actions, the plaintiff must prove that the employer’s stated reason is a pretext for discrimination.

The problem for a volunteer fire company is that once an applicant establishes membership in a protected class, is otherwise qualified, and has been voted down (thereby shifting the burden to the fire company), how does the fire company show a “legitimate, non-discriminatory reason” for its actions? While the fire company can point to the fact that a membership vote went against admitting the applicant, it is virtually impossible to rebut the inference of discrimination created in Step 1. The case will likely be decided by a summary judgment and never reach Step 3.

The fire company fares no better under a disparate impact claim, where a similar three-step burden shifting applies, per Griggs v. Duke Power Co., 401 U.S. 424 (1970); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (1980); Wards Cove Packing Company, Inc. v. Atonio, 109 S. Ct. 2115 (1989):

The plaintiff must establish a prima facie case of disparate impact upon members of a protected class. This is done by statistics showing that selection criteria substantially burden a protected class more heavily than whites/males.
The burden then shifts to the employer to establish that the criteria are job-related and consistent with business necessity.
If the employer is successful, the burden shifts back to the plaintiff to establish that a less discriminatory employment practice is available, or that the practice was a pretext for discrimination.

Applying the disparate impact theory to the voting process, when the voting results in a disparate impact upon a minority class, then despite the fact that no one intentionally discriminated against a candidate, the fire company is placed in virtually an impossible position of defending the use of voting as “job-related consistent with business necessity.”

The EEOC has established an 80 percent rule intended to serve as the threshold for disparate impact discrimination. When the acceptance rate of members of a protected-class is less than 80 percent of the majority class, a prima facie case of disparate impact discrimination is established.

By way of example, if 10 white males apply for membership and are voted in, they have a 100 percent acceptance rate. If 10 black males apply and 7 are voted in, their selection rate is 70 percent. Because the acceptance rate of blacks is less than 80 percent of the white acceptance rate, there is a prima facie case of race discrimination.

A volunteer fire company in this situation must establish that the voting process is “job-related consistent with business necessity,” which is likely to be an impossible burden. Assuming the department was somehow able to shift the burden back to the applicant, the applicant would merely have to show the fire company could have used some other less-discriminatory process for admitting applicants (e.g., a written exam, interview) in order to prevail.

The combined effect of both disparate treatment and disparate impact burden shifting is such that if a volunteer fire company cannot successfully argue that it is not subject to the discrimination law, the case will likely be lost.

Alternative approaches

While there is nothing inherently illegal in using membership voting to admit new members, the risk of a discrimination challenge is certainly something that fire companies ought to consider.

Admittedly, discrimination laws may not apply to all volunteer fire companies. However, it is safer to assume they will. It is also wise to assume that if a member of a protected class is denied membership, the department will have to be able to defend its decision in court.

Each organization needs to determine whether the benefits of using membership voting are worth the risk. There are numerous alternatives to voting in new members that rely upon the use of objective criteria to evaluate applicants. Some of the alternatives include the following:

Objective qualifications that include an evaluation of physical abilities and general knowledge
Medical examination
Criminal background check
Reference checks
Successful completion of an interview process completed before the fire chief, command staff, or screening committee
Successful completion of formalized probationary period

Any criteria used to select candidates for membership in the organization should be job related and consistent with business necessity.