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Was firefighter's rush to take test necessary?


Ohanian Comment: Texas, where else? If somebody wrote this into a movie script it would be considered unbelievable. But these days, we train little kids to believe the test overrules all good sense.

State law that forced her to take exam just after giving birth may violate federal law

By Leigh Hopper

Houston firefighter Beda Kent checked herself out of the hospital and
aced a promotion exam Wednesday, just 12 hours after giving birth to a
girl. Legally, she may not have needed to.

A University of Houston Law Center professor said Thursday that the
Texas law requiring all firefighters to take a career-advancing test
simultaneously except those who are active military may violate
Title VII federal anti-discrimination regulations.

"Not that they were intentionally discriminating against her because
she's a woman, (but) unless there was a business necessity for that, it
is illegal under federal law," said Laura Oren, who teaches courses on
women and the law, and conflicts between laws.

"If they're willing to make an exception for military," she said, "but
not willing to make an exception for women who just delivered babies 12
hours ago ... it's a business practice which has an unequal impact on a
protected group of people."

The possibility of discrimination was discussed, but "we just didn't
have time to go investigate it," Houston Professional Fire Fighters
Association President Roland Chavez said.

Kent did not want to seek an injunction postponing the test, Chavez
said, because 500 of her peers were expecting to take the test as
scheduled.

That kind of scheduling conflict on test day is a common problem for
firefighters, said Jeff Zack, a spokesman for the International
Association of Fire Fighters, a labor union representing more than
267,000 firefighters and emergency medical personnel.

"In this case, it was a pregnant firefighter, but it happens all the
time that a firefighter is on duty the night before a test and gets
injured before an exam. There has to be some flexibility there."

A spokeswoman for the city of Austin could not recall a similar incident
happening in the capital. But if it had, Austin, like most cities in
Texas, would have to defer to state civil service laws that do not allow
for such an exception, she said.

"We would have to follow state civil service laws," spokeswoman Rebecca
Giello said.

Looking for options
State laws dictate the rules governing promotion tests for police and
fire departments, unless collective bargaining allows for a deviation,
Giello said.

Kent, a 12-year-veteran of the Houston Fire Department, began looking
into alternatives early last week when it appeared childbirth might
conflict with her career plans. She is one of nearly 120 female
firefighters in a department of 3,800.

The promotion exam, given once every two or three years, requires
candidates to study for months and commit five books to memory. Passing
would allow Kent to become a captain, increasing her base salary from
$43,000 to $49,000.

Kent said her obstetrician knew her concerns. The two had talked about
inducing labor early. Kent kept doing aerobics in hopes of moving things
along.

But a week before the test, the doctor examined Kent and said she wasn't
ready an induction attempt likely would result in a Caesarean section.

So Kent and her husband, Travis Kent, met with Chavez to discuss
options, kicking off a flurry of behind-the-scenes negotiations to make
sure she got to take the test.

The veteran firefighter also changed tactics, giving up aerobics for her
bed in hopes of delaying delivery.

Chavez conferred with Fire Chief Phil Boriskie, the mayor's office, the
city attorney and the civil service office that administers police and
firefighter exams. A letter requesting an exception to the rules was
delivered to city offices Monday.

Chavez contacted unions in other states, looking without luck for a
similar situation that might help Kent's cause.

"The state law is clear ... they are required to take the test at the
same time and in the same place so they're all together," said Frank
Michel, a spokesman for Mayor Bill White. "The way they grade the tests,
everyone stays in the room and they go over the answers and people are
free to question."

Still hoping to find wiggle room, Kent spoke with Chavez several times a
day, updating him on her delivery status.

"I have my fingers crossed," he told her.

"I have my legs crossed," she joked.

Aced test, back to baby
Tuesday, Kent's husband called Chavez with news of the baby's birth at
8:30 p.m., imploring him to delay the test.

In the end, the test went on as scheduled. Kent left her baby at The
Woman's Hospital of Texas at 8:40 Wednesday morning, in time to register
for the 9 o'clock test at the George R. Brown Convention Center.
Boriskie went to the test site to make sure the exam didn't begin before
Kent arrived, Chavez said. The chief ordered an ambulance on standby in
case Kent developed complications.

Kent finished in two hours scoring 104 out of 110 and returned to
the hospital to breastfeed her baby, Brina Sue.

"They very well could have accommodated me at the hospital, sent a
proctor," Kent said, clearly annoyed. "I could have taken the test the
same time as everyone else. It could have happened and it should have
happened."

Chronicle reporter Zeke Minaya contributed to this report.

leigh.hopper@chron.com

— Leigh Hopper
Houston Chronicle

2006-01-13


TX


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