Third Circuit's Lanning v. SEPTA Decision:
"Business Necessity" Requires Setting Minimum Standards
James C. Sharf
Sharf and Associates
The Civil Rights Act of 1991defined the employer's rebuttal to a
"disparate impact" discrimination claim involving objective assessment
as "job related for the position in question and consistent with business
necessity." As the Third Circuit Court of Appeals noted, neither other
circuit courts nor the Supreme Court have interpreted this language. The Civil
Rights Division of the U.S. Department of Justice, which was a party in this
case, however, was successful in advocating the following: "The `business
necessity' burden is separate and addition to the `job relatedness'
burden," that even with criterion-related validity, the employer "must
still demonstrate the `practical significance' of any correlation between those
criteria and the test," and "even where a test itself is demonstrably
job-related, an employer must still show that the chosen cutoff score predicts
successful job performance and distinguished applicants who will be successful
performers on the job from those who will be unsuccessful." The Justice
briefs were signed by the controversial Acting Attorney General, Bill Lann Lee,
head of the Civil Rights Division. Because the legislative history of the Act
had conflicting interpretations of what was meant by "business
necessity," the adversarial process of interpreting the meaning of this
burden has now begun.
Background
In upgrading the Philadelphia transit police (SEPTA), SEPTA's consultant, an
exercise physiologist, determined that running, jogging, and walking were
important tasks for patrol officers. Incumbent subject matter expert officers (SMEs)
estimated that it was reasonable to expect to run one mile in full gear (26 lbs)
in 11.78 minutes. SEPTA's consultant rejected this estimate as too low based
upon his determination that any individual could meet this requirement.
Ultimately, he recommended a 1.5 mile run within 12 minutes, requiring that an
officer possess an aerobic capacity of 42 mL/kg/min. He initially decided that
an aerobic capacity of 50/mL/kg/min was necessary to perform the job, but after
determining that such a high standard would have a draconian effect on women
applicants, he decided that the goals of SEPTA could be satisfied by using a
42.5 mL/kg/min standard.
Between 1991_93, SEPTA's 1.5 mile, 12-minute physical fitness test was passed
by 12% of the female and 60% of the male applicants. The pass rates during the
time period under challenge were 6.7% and 55.6% respectively. At the time of
trial in 1997, the work force of 234 had 190 officers, 16 of whom were women.
Concurrent with implementation of the new physical test for applicants in 1991,
SEPTA began testing the aerobic capacity of incumbent officers. Not
surprisingly, particularly among older incumbents, running 1.5 miles in 12
minutes was a condition of employment that drew the union's attention. By 1996,
after conditioning, however, 86% of incumbents were able to pass the aerobic
test required of applicants.
The aerobic capacity test was scored on a pass/fail basis and was
administered after a pass/fail written exam. Candidates were then ranked on
their scores based on a panel interview. The 59%/12% male/female pass-rate was a
5.56 standard deviation disparity. Five unsuccessful female applicants filed a
Title VII class-action suit in January, 1997, challenging the 1.5 mile 12-minute
run. The Civil Rights Division of the U.S. Department of Justice joined the case
in February, 1977. After litigation commenced, SEPTA hired expert statisticians
who demonstrated a statistically significant correlation between aerobic
capacity and arrests, arrest rates, and commendations. The district court
consolidated the cases, held a bench trial in January, 1998, and rendered an
opinion in favor of SEPTA in June, 1998. Based on the consultants' reports, the
district court held that SEPTA had established that its aerobic capacity
requirement was job-related and consistent with business necessity. This
decision was appealed to the Third Circuit which handed down their decision
(excerpts below) on June 29, 1999, remanding the case back to the district court
for further developing the record as to what is meant by "business
necessity"an invitation for outside parties to submit amicus
briefs to the court. Because the meaning of the Civil Rights Act of 1991's
"business necessity" rebuttal burden is being defined in this circuit
court's "first impression," it is likely that future issues of TIP will
follow this case.
U.S. Department of Justice Brief to Third Circuit
In responding to questions about the most arduous tasks they may be required
to perform, the SMEs estimated that a SEPTA officer should be able to run one
mile in full gear in 11 minutes and 47 seconds. This pace on a one mile run in
full gear corresponds to running 1.5 miles without gear in 15 minutes and 40
seconds, in that both require an aerobic capacity of approximately 33.5 mL/kg/min.
[SEPTA's physiologist] dismissed the SMEs' judgment as "wholly
unrealistic" and a "ridiculous pace which anyone including my
grandmother, probably could have achieved." Instead of setting the cutoff
at 15 minutes and 40 seconds, [he] unilaterally set the cutoff score at 12
minutes, which...represented an aerobic capacity of 42.5 mL/kg/min. In so doing,
[he] rejected the judgment of SEPTA's experienced officers. [His] selection of
42.5 mL/kg/min also was made despite the fact that he previously recommended a
level of aerobic capacity of 33.5 mL/kg/min for structural fire fighters, a job
that is more aerobically demanding than that of SEPTA transit police officers.
[SEPTA's physiologist's report] provided to SEPTA in support of his
recommendations does not contain a justification for the cutoff score of 42.5 mL/kg/min.
At trial, [he] testified that he chose the cutoff score of 42.5 mL/kg/min using,
in part, intuition. [He] further testified that the link between aerobic
capacity and job performance of SEPTA officers was "common-sensual"
and testified that it is "obvious" that the better a person's
cardiovascular system is, the "more of the job" that person can do.
[He] did not conduct a study to determine whether having an aerobic capacity of
43.5 mL/kg/min correlated with successful performance as a SEPTA transit
officer. A previous study [he] conducted for a metropolitan sheriff's department
in Florida with over 900 employees demonstrated that performance on a 1.5 mile
running test does not correlate with successful police officer performance.
Although SEPTA was, at all times relevant to this litigation, aware of the
disparate impact upon women caused by its aerobic capacity test, it never
attempted to determine whether an alternative test with a less severe impact
existed.
SEPTA was unable to identify any instance in which an incumbent officer who
failed the test (given to incumbents since 1991) was unable to perform the
physical requirements of the job.... It is undisputed that on many occasions,
SEPTA officers with aerobic capacity below 42 mL/kg/min have performed in
outstanding, and in some instances, heroic, manners.... SEPTA has promoted and
given special recognition for outstanding performance to a number of such
officers.
After this litigation began, SEPTA hired several additional experts in an
effort to defend its aerobic capacity test.... [They] performed a
criterion-related validation study which examined the statistical relationship
between the aerobic capacity of incumbent officers and three "criterion
measures" based on data made available by SEPTAnumber of arrests, arrest
rates, and commendations. These "criterion measures" were neither
derived from [the physiologist's] job analysis nor selected by an industrial
psychologist. SEPTA has never used these criteria to measure performance of its
officers. No SEPTA employee testified that SEPTA, as opposed to an expert
retained after litigation began, believes that the chosen criteria are reliable
and meaningful indicators or measures of SEPTA transit police officer
performance.
[SEPTA's expert] testified that he was not qualified to select the cutoff
score on the aerobic capacity test and he never determined the level of aerobic
capacity required for successful performance as a SEPTA transit police officer.
Rather, [his] studies and testimony were offered to show the statistical
relationship between aerobic capacity and the available data. [He] first found a
statistically significant correlation between aerobic capacity of incumbent
officers and the number of arrests made by such officers. [His] analysis
considered only the number of arrests, not the circumstances or quality of the
arrests. [He] did not analyze whether the arrests required aerobic capacity or
running any distance, were made with assistance of other officers, resulted in
convictions, lawsuits, or judgments against SEPTA or injuries to bystanders,
involved excessive force, or whether probable cause existed for the arrests.
Second, [he] created the concept of an "arrest rate"1
and concluded that a statistically significant correlation existed between the
aerobic capacity of incumbent officers and their "arrest rates." SEPTA
itself has never used the concept or the term "arrest rate" in
assessing the job performance or an individual officer or in any other fashion.
SEPTA recognizes that not every incident to which an officer responds should
result in an arrest...including "unfounded incidents" defined by SEPTA
regulations as incidents which, upon investigation, prove to be groundless; that
is, "no offense was committed or attempted."
1 "Arrest rate" = number of arrests divided by number of
incidents to which the officer responded.
[He] calculated several different correlation coefficients between the
aerobic capacity of incumbent officers and those officers' numbers of arrests
and "arrest rates"...the highest correlation between aerobic capacity
and any "criterion" was +0.107 (the correlation between aerobic
capacity and the number of arrests for the more serious offenses).... [He]
conceded that this correlation was low and that therefore aerobic capacity was
not a good predictor of numbers of arrests or "arrest rate."
In addition, [he] compared officers whose aerobic capacity was always at
least 42 mL/kg/min with those whose aerobic capacity was always below that
level. Based on a regression analysis of these data, [he] estimated that SEPTA
could have made 470 additional arrests during the period 1991 through 1996,
including 70 additional arrests for Part 1 crimes, if all of its officers had
maintained an aerobic capacity of 42 mL/kg/min or above.
[He] also reviewed 207 commendations awarded to incumbent patrol officers
between 1994 and 1996, i.e., 3_5 years after SEPTA required incumbent officers
to possess and maintain an aerobic capacity of 42 mL/kg/min. Such commendations
do not measure overall performance; rather they are given for singular acts of
outstanding performance. [He] found that 4% of the officers who received such
commendations had an aerobic capacity of less than 42 mL/kg/min. Finally, [he]
analyzed data concerning 953 perpetrators arrested for Part 1 offenses. On the
basis of the perpetrators' sex, race, and age, and by assuming that the
perpetrators' aerobic capacities were equivalent to those of U.S. Army recruits,
he estimated that 76% of the perpetrators had an aerobic capacity of at least 42
mL/kg/min. With respect to the commendation and perpetrator analyses, [he] did
not calculate any correlation coefficients.
...Neither the Philadelphia Police Department, the [D.C. Metro] Police, the
New York City Transit Police Department, the AMTRAK Police Department, the
Maryland Mass Transit Administration, the Port Authority of New York and New
Jersey, the Federal Bureau of Investigation, the U.S. Drug Enforcement
Administration, nor the U.S. Secret Service require their applicants to have an
aerobic capacity of 42.5 mL/kg/min or more. No evidence was presented at trial
that any other law enforcement agency has such a requirement....Women constitute
22.4% of Philadelphia police officers, 13% of [D.C. Metro] police officers, and
16% of AMTRAK officers..., but only 7% of SEPTA officers.
SEPTA's requirement that transit police officer applicants demonstrate an
aerobic capacity of 42.5 mL/kg/min by completing a 1.5 mile run in 12 minutes is
unreasonably stringent and indisputably has a severe adverse impact on women.
The test goes far beyond what is actually required for satisfactory or effective
police officer performance, and thus needlessly excludes the overwhelming
majority of women from even being considered for employment. In holding that
SEPTA had established that this requirement is "job related...and
consistent with business necessity," the district court committed a number
of serious legal and factual errors.
First, the district court applied an overly lenient legal standard when it
refused to require SEPTA to show any business necessity for the 42.5 mL/kg/min
aerobic capacity requirement. By suggesting that SEPTA need only show that the
requirement significantly serves a legitimate business interest, the district
court ignored the express language of the statute. In particular, the court
failed to note that, in the Civil Rights Act of 1991, Congress emphatically
rejected the Supreme Court's adoption of this precise standard in Wards Cove
Packing Co. v. Atonio...and instead codified the "business
necessity" language of Griggs v. Duke Power Co. and its
progeny.... [T]he court should have examined SEPTA's business necessity defense
with particular care, given the test's severe adverse impact on women.
Second, the district court disregarded significant evidence showing that
SEPTA's 42.5 mL/kg/min aerobic capacity requirement was not justified by
business necessity. In fact, a majority of SEPTA's own incumbent officers have
failed the test while continuing to perform their jobs in a satisfactory or even
outstanding manner. SEPTA provided no evidence that any of these incumbent
officers were unable to meet the physical requirements of the job. SEPTA was
also unable to point to a single other law enforcement agency in the country
that imposes a comparable requirement on police officer applicants. Indeed,
plaintiffs presented extensive evidence that other law enforcement agencies with
equally demanding job duties successfully rely on selection procedures with
significantly less adverse impact. In light of these facts, SEPTA simply cannot
justify a requirement with such a severe impact on women.
Finally, neither [SEPTA's expert's] original report nor any of the other
expert reports provided by SEPTA demonstrates that the 42.5 mL/kg/min aerobic
capacity requirement is "job-related ... and consistent with business
necessity." Even if SEPTA had succeeded in demonstrating that a test of
aerobic capacity is job-related, it provided no justification whatsoever for
selecting the cutoff score of 42.5 mL/kg/min. In addition, the district court
erred in holding that [their expert's] study made no effort to show that a 42.5
mL/kg/min aerobic capacity is necessary for effective performance as a SEPTA
transit police officer.
The district court also erred in finding that the various statistical
analyses conducted by [SEPTA's expert statistician] demonstrate the
job-relatedness and business necessity of the test. Not only were the selection
criterianumber of arrests, "arrest rates," and
commendationsinappropriate and unreliable measures of job performance, but the
correlations [he] found using these criteria were also too low to demonstrate
any practical significance [emphasis added]. Nor did [his] "perpetrator
analysis" demonstrate the job-relatedness of the test under any accepted
test validation theory....
In sum, the record is devoid of evidence that SEPTA's 42.5 mL/kg/min aerobic
capacity requirement, which excludes almost all women from consideration for
positions as transit police officers, is in any way necessary to, or even
related to, successful job performance.
By requiring employers to demonstrate that a challenged practice is "job
related for the position in question and consistent with business
necessity," Title VII makes clear that the "business
necessity" burden is separate and in addition to the "job
relatedness" burden [emphasis added].... The district court thus
committed a serious error of law in requiring SEPTA to show only that the
challenged test was manifestly job-related without any showing of business
necessity.... [T]he court should have scrutinized the alleged necessity of the
test with particular care in this case because of the severity of the 12-minute
cutoff's adverse impact on women...the greater the adverse impact, the greater a
showing of job-relatedness that is required.
The United States recognizes that an employer may seek to improve its
workforce through applicant testing, so long as the employer demonstrates that
the test it uses is valid and that the standard it seeks to impose is actually
necessary for safe and effective job performance. ...SEPTA has failed to
demonstrate an adequate basis for selecting a cutoff that more than half its
workforce has failed on at least one occasion to meet, and that excludes the
overwhelming majority of female applicants from even being considered for
employment.
A number of other law enforcement agencies...do not eliminate applicants on
the basis of an aerobic capacity test; they instead provide physical training
after hire to ensure that applicants can meet the physical requirements of the
job.
Neither SEPTA nor the district court...cited any evidence suggesting
that officers employed by these other law enforcement agencies are failing to
perform their jobs effectively because their aerobic capacities are below 42.5
mL/kg/min. In the absence of any such evidence, the district court erred in
holding that SEPTA had established a business necessity for its stringent
cutoff.
Title VII requires an employer to do more than simply "articulate a
justification" for a cutoff score, particularly where the cutoff has the
effect of excluding almost 90% of female applicants. Even where a test itself
is demonstrably job-related, an employer must still show that the chosen cutoff
score predicts successful job performance and distinguishes applicants who will
be successful performers on the job from those who will be unsuccessful [emphasis
added].
Thus, even where a test itself is valid, selection of a higher than
necessary cutoff score violates Title VII if the selected cutoff score has
disparate impact [emphasis added].
Title VII does not permit a test developer to substitute his own
subjective judgment or opinion for the evidence or judgments provided by subject
matter experts...[emphasis added].
[SEPTA's expert statistician's] finding of a "linear" relationship
between aerobic capacity and arrests and arrest rates does not compel a
different conclusion. A "linear" relationship simply means that a
correlation coefficient greater than zero exists. The existence of a
"linear" relationship or positive correlation is not legally
sufficient to establish the job-relatedness and business necessity of a chosen
cutoff score [emphasis added]. Rather...SEPTA must separately demonstrate
that the cutoff score is required for or predicts successful job performance. To
the extent that the court concluded to the contrary, it erred as a matter of
law.
[T]he district court ignored the fact that SEPTA knew that...[the]
test would have a severe adverse impact on women, but failed to search for an
alternative test that would have less adverse impact...[emphasis added].
The district court committed a fundamental error in concluding that numbers
of arrests, "arrest rates," and commendations of incumbent officers
were appropriate criterion measures to determine whether SEPTA's aerobic
capacity test predicts successful job performance. Criterion measures must be
reliable and meaningful measures of job performance; they should not be chosen
merely on the basis of availability of data...numbers of arrests, arrest rates,
and commendations are not reliable or meaningful measures of SEPTA transit
police officer performance. SEPTA has never used [the expert's] criteria
in assessing the performance of its officers. Nor is there any evidence that
SEPTA itself considers them reliable and meaningful measures of job performance.
Criterion measures used in a criterion-related validity study must be derived
from a proper job analysis [emphasis added].
SEPTA presented no evidence establishing that any perpetrator out ran or out
struggled an officer or otherwise escaped arrest because the aerobic capacity of
an officer was below 42 mL/kg/min.
Commendations are awarded for "singular act(s) of outstanding
performance," rather than for overall job performance...[SEPTA's expert]
never determined whether officers had an equal opportunity to receive a
commendation...[and] failed to show that commendations were uniformly and fairly
given for similar acts.
Assuming, arguendo, that the selected criteria were appropriate, SEPTA
must still demonstrate the "practical significance" of any correlation
between those criteria and the test...[emphasis added]. The district court
rejected the settled case law that practical significance is measured by the
magnitude of the correlation coefficient. Instead, the court concluded that
SEPTA had established practical significance based on [SEPTA's expert's]
projection that SEPTA would have made an additional 470 arrests for Part 1
crimes, had officers with an aerobic capacity below 42 mL/kg/min maintained an
aerobic capacity of at least 42 mL/kg/min. By relying on [the expert's]
projections rather than examining the magnitude of the correlation coefficient
in light of the severe adverse impact of the test, the court erred as a matter
of law.... This Court need not reach the issue of whether a correlation of
+0.30 or higher is required to satisfy the practical significance' requirement [emphasis
added]. In this case, the district court relied on a correlation of +0.107. Such
a correlation is by any measure far too low to be meaningful, especially since
it does not even represent a correlation between aerobic capacity and overall
job performance.... [T]he highest correlation reported...is +0.22...[and] the
court further concluded that if the +0.22 coefficient were corrected for
restriction in range, it would reach the magnitude of +0.33.... [I]t is
improper to correct the correlation coefficients for restriction in range
[emphasis added].
Although the court considered it "obvious" and "plain common
sense" that SEPTA officers need a high aerobic capacity to apprehend
perpetrators, "an assumption is not an acceptable substitute for evidence
of validity"...[the] employer's burden cannot be carried by
"obvious" relationship between selection standards and qualities
thought necessary to job performance.
Third Circuit Court of Appeals Decision
In this appeal [Lanning v. Southeastern Pennsylvania Transportation
Authority (3d Cir., June 29, 1999)], we must determine the appropriate legal
standard to apply when evaluating an employer's business justification in an
action challenging an employer's cutoff score on an employment screening exam.
We hold today that under the Civil Rights Act of 1991, a discriminatory
cutoff score on an entry level employment examination must be shown to measure
the minimum qualifications necessary for successful performance of the job in
question in order to survive a disparate impact challenge [emphasis added].
Because we find that the District Court did not apply this standard in
evaluating the employer's business justification for its discriminatory cutoff
score in this case, we will reverse the District Court's judgment and remand for
reconsideration under this standard.
This appeal focuses our attention on the proper standard for evaluating
whether SEPTA's 1.5 mile run is "job related for the position in question
and consistent with business necessity" under the Civil Rights Act
of 1991.
The Supreme Court has yet to interpret the job relatedness for the position
in question and consistent with the business necessity standard adopted by the
Act. In addition, our sister courts of appeals that have applied the Act's
standard to a Title VII challenge have done so with little analysis. Because the
Act proscribes resort to legislative history with the exception of one short
interpretative memorandum endorsing selective case law, our starting point in
interpreting the Act's business necessity language must be that interpretive
memorandum. The memorandum makes clear that Congress intended to endorse the
business necessity standard enunciated in Griggs2 and not the Wards
Cove3 interpretation of that standard. By Congress'
distinguishing between Griggs and Wards Cove, we must conclude
that Congress viewed Wards Cove as a significant departure from Griggs.
Accordingly, because the Act clearly chooses Griggs over Wards Cove,
the Court's interpretation of the business necessity standard in Wards Cove does
not survive the Act.
2 In Griggs in 1971, the Supreme Court stated that what is
required by Title VII is "the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible classification"
and that in evaluating practices fair in form but discriminatory in operation,
"the touchstone is business necessity." The Court was unclear in
articulating what an employer must show to demonstrate "business
necessity."
3 In Wards Cove in 1989, the Supreme Court stated "The
dispositive issue is whether a challenged practice serves, in a significant way,
the legitimate employment goals of the employer. The touchstone of this inquiry
is a reasoned review of the employer's justification for his use of the
challenged practice. A mere insubstantial justification in this regard will not
suffice, because such a low standard of review would permit discrimination to be
practiced through the use of spurious, seemingly neutral practices. At the same
time though, there is no requirement that the challenged practice be `essential'
or `indispensable' to the employer's business necessity for it to pass
muster."
In the context of a hiring exam with a cutoff score shown to have a
discriminatory effect, the standard that best effectuates this mission is
implicit in the Court's application of the business necessity doctrine to the
employer in Griggs, i.e., that a discriminatory cutoff score is
impermissible unless shown to measure the minimum qualifications necessary for
successful performance of the job in question [emphasis added]. Only this
standard can effectuate the mission begun by the Court in Griggs; only by
requiring employers to demonstrate that their discriminatory cutoff score
measures the minimum qualifications necessary for successful performance of the
job in question can we be certain to eliminate the use of excessive cutoff
scores that have a disparate impact on minorities as a method of imposing
unnecessary barriers to employment opportunities.
Our conclusion that the Act incorporates this standard is further supported
by the business necessity language adopted by the Act. Congress chose the terms
"job related for the position in question and consistent with
business necessity." Judicial application of a standard focusing solely on
whether the qualities measured by an entry level exam bear some relationship to
the job in question would impermissibly write out the business necessity prong
of the Act's chosen standard. With respect to a discriminatory cutoff score, the
business necessity prong must be read to demand an inquiry into whether the
score reflects the minimum qualifications necessary to perform successfully the
job in question. See also EEOC Guidelines, 29 C.F.R. 1607.5(H) [noting that
cutoff scores should "be set so as to be reasonable and consistent with
normal expectations of acceptable proficiency within the work force"].
Footnote #15: We need not be concerned that implementation of this standard
will result in forcing employers to adopt quotas.... If an employer can
demonstrate that its discriminatory cutoff score reflects the minimum
qualifications necessary for successful job performance, it will be able to
continue to use it. If not, the employer must abandon that cutoff score
[emphasis added], but is free to develop either a nondiscriminatory practice
which furthers its goals, or an equally discriminatory practice that can meet
this standard.... [I]t does not follow that SEPTA would then be required to hire
women in equal proportion to men. For example, SEPTA could: (1) abandon the test
as a hiring requirement but maintain an incentive program to encourage an
increase in the officer's aerobic capacities; (2) validate a cutoff score for
aerobic capacity that measures the minimum capacity necessary to successfully
perform the job [emphasis added] and maintain incentive programs to achieve
even higher aerobic levels; or (3) institute a nondiscriminatory test for
excessive levels of aerobic capacity such as a test that would exclude 80% of
men as well as 80% of women through separate aerobic capacity cutoffs for the
different sexes. Each of these options would help SEPTA achieve its stated
goal of increasing aerobic capacity without running afoul of Title VII and none
of these options require hiring by quotas.
The District Court upheld this cutoff because it was "readily
justifiable." The validation studies of SEPTA's experts upon which the
District Court relied to support this conclusion demonstrate the extent to which
this standard in insufficient under the Act. The general import of these studies
is that the higher an officer's aerobic capacity, the better the officer is able
to perform the job. Setting aside the validity of these studies, this conclusion
alone does not validate...[the] 42.5mL/kg/min cutoff under the Act's business
necessity standard. At best, these studies show that aerobic capacity is related
to the job of SEPTA transit officer. A study showing that "more is
better," however, has no bearing on the appropriate cutoff to reflect the
minimal qualifications necessary to perform successfully the job in question [emphasis
added]. [The employer's expert's] testimony is particularly instructive on this
point. [He] testified that in view of the linear relationship between aerobic
capacity and the arrest parameters, any cutoff score can be justified since
higher aerobic capacity levels will get you more field performance (i.e.,
"more is better"). Under the District Court's understanding of
business necessity, which requires only that a cutoff score be "readily
justifiable," SEPTA, as well as any other employer whose jobs entail any
level of physical capability, could employ an unnecessarily high cutoff score on
its physical abilities entrance exam in an effort to exclude virtually all women
by justifying this facially neutral yet discriminatory practice on the theory
that more is better. This result contravenes Griggs and demonstrates why,
under Griggs, a discriminatory cutoff score must be shown to measure the
minimum qualifications necessary to perform successfully the job in question [emphasis
added]. This is not to say that studies that actually prove that "more is
better" are always irrelevant to validation of an employer's discriminatory
practice. For example, a content-validated exam, such as a typing exam for the
position of typist, which demonstrates that the applicants who score higher on
the exam will exhibit better job performance, may justify a rank-ordering hiring
practice that is discriminatory. In such a case, a validation study proving
that "more is better" may suffice to validate the rank-order hiring.
This is true, however, only in the rarest of cases where the exam tests for
qualities that fairly represent the totality of a job's responsibilities
[emphasis added]. It is unlikely that such a study could validate rank-hiring
with a discriminatory impact based upon physical attributes in complex jobs such
as that of police officer in which qualities such as intelligence, judgment, and
experience surely play a critical role....
The District Court rejected as irrelevant the plaintiffs' evidence that
incumbent officers had failed the physical fitness test yet successfully
performed the job and that other police forces function well without an aerobic
capacity admission test. Under the standard implicit in Griggs and
incorporated into the Act, this evidence tends to show that SEPTA's cutoff score
for aerobic capacity does not correlate with the minimum qualifications
necessary to perform successfully the job of SEPTA transit officer. Accordingly,
this evidence is relevant and should be considered by the District Court on
remand.
For the foregoing reasons, it is clear to us that the District Court did not
employ the business necessity standard implicit in Griggs and
incorporated by the Act which requires that a discriminatory cutoff score be
shown to measure the minimum qualifications necessary for successful performance
of the job in question in order to survive a disparate impact challenge. We will
therefore vacate the judgment of the District Court and remand this appeal for
the District Court to determine whether SEPTA has carried its burden of
establishing that its 1.5 mile run measures the minimum aerobic capacity
necessary to perform successfully the job of SEPTA transit police officer. Because
this is the first occasion we have had to clarify the Act's business necessity
standard, on remand the District Court may wish to exercise its discretion to
allow the parties to develop further the record in keeping with the standard
announced here [emphasis added].
Dissenting Third Circuit Opinion
Aerobic capacity is an objective, measurable factor which gauges the ability
of a human being to perform physical activity. The aerobic demands on the human
system are affected by absolutes such as the distance traveled, the speed, the
number of steps to be climbed, and similar factors. Governmental agency
pronouncements will not shorten distances, reduce the number of steps, or
decrease the aerobic capacity of perpetrators to match the reduced standards of
officers, male or female. Some males and more females cannot meet the necessary
requirements. Based on the facts established at trial, those individuals simply
cannot perform the job efficiently. To the extent that they cannot, their hire
adversely affects public safety.
The Civil Rights Act of 1991 presents another potential barrier to the
relative fitness test. [The Act] prohibits "in connection with the
selection or referral of applicants or candidates for employment...to...use
different cutoff scores...for employment related tests on the basis
of...sex." By its plain language, [the Act's race norming prohibition]
arguably prohibits a relative fitness test. The District Court concluded that
this provision did not apply. I have some doubt on that ruling, but need not
reach that issue because I would affirm it on other bases.
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