People all over the country are talking about the Houston firefighter who had to take a promotion test only hours after having a baby. But now, legal experts say requiring her to take the test — no matter what — may not have been legal.
Firefighter Beda Kent had her baby and checked herself out of the hospital the same day to take the promotion exam. The Fire Department says this test is given every two or three years, and state law says anyone who misses it has to wait till next time. The law allows exceptions for people on active military duty, and Professor Laura Oren of the University of Houston Law School says that’s where the state law may violate federal law.
“If they can give an accommodation for other purposes, but they won’t or can’t give an accommodation for this purpose, then that could be disparate impact, pregnancy discrimination, which is sex discrimination, outlawed by Title VII of the Civil Rights Act of 1964.”
Professor Oren says states can’t allow exceptions for one group, but not for other groups, especially people who’re protected by federal law.
“Federal law, in its proper sphere, always trumps state law. So, if it does violate federal law it doesn’t matter that it’s what the state law is. You can’t plead that you’re complying with state law and then break a federal law. “
Professor Oren says even though no one has challenged the state law in court, she thinks the legislature would do well to examine it at the first opportunity and make whatever changes are needed to remove this apparent conflict with the federal law.