By: Tiffanie Benfer, Esq.
What kind of legal advice did the Philadelphia Fire Department rely on when it instituted a policy of not hiring fire fighters over the age of 40? Seven applicants proved that they were highly qualified and could pass the physical test, but they were still turned down solely because of age. I’m gratified, but not surprised, that the Pennsylvania Human Rights Commission (PHRC) found last week that the policy violates the state prohibition of age discrimination.
Here’s a link to the story in the Philadelphia Inquirer.
http://www.philly.com/philly/news/local/38741837.html


Certainly, the Fire Department may institute job qualifications that are reasonably tied to the job requirements. And it may be that some or even many 40-something applicants will not be able to pass the physical exam. But, the PHRC found that age cannot be used as a proxy for those requirements.
The case involved seven job applicants over the age of 40 who were not permitted by the Fire Department to take the physical test because of their age. All seven took the test on their own and passed it. One of the seven just returned from a tour of duty in Iraq, where he was required to carry 140 pounds of equipment in 120-degree heat.
The Philadelphia Fire Department is, it seems, unrepentant. Fire Commissioner Lloyd Ayers said that the city was considering an appeal. He was quoted in the Philadelphia Inquirer as saying that “One of the things that we’re sure of is that this is a job for young folks. It’s not a job for the aged.” (side commentary: “aged”?? you’re talking about 40 year olds! I’m feeling personally insulted by THAT characterization!)
It seems the Fire Department still hasn’t learned the basic lesson of employment discrimination law: it is always a mistake — not to mention an invitation to liability — to use the stereotyped qualities of a class of people as proxy for the real qualities you are looking for in an employee. That thinking went out with Archie Bunker. (Remember? He wanted a Jewish accountant because they’re good with money…)
So, Philadelphia. We certainly want firefighters who have the physical ability to do the job. But, if you’ve ever seen a crowd of teenaged couch potatoes playing video games, you’ll know that not all young people will qualify. Equally clear, there are plenty of people over 40 who have what it takes. Don’t appeal this. Give them a chance.