VERAGENE HARDY, Plaintiff and Appellant, v. WILLIAM F. STUMPF et al., Defendants and Respondents.
S.F. No. 23482
Supreme Court of California
Apr. 13, 1978.
June 1, 1978
21 Cal. 3d 1
Clifford Sweet, Carolyn Jones, Richard Duane and Ballachey, Meade, Duane & Lyman for Plaintiff and Appellant.
David A. Self, City Attorney, and William C. Sharp, Deputy City Attorney, for Defendants and Respondents.
OPINION
CLARK, J.—Plaintiff appeals from judgment denying petition for writ of mandate. Challenging City of Oakland‘s requirement that police officer applicants be able to scale a six-foot wall, she claims the disproportionate rejection of females constitutes sex discrimination denying equal protection and violating the 1964 Civil Rights Act. The trial court upheld the requirement as reasonably related to the duties of Oakland police officers. We affirm the judgment.
Plaintiff similarly challenged in 1971 the reasonableness of height and weight requirements for becoming Oakland police officers. (Hardy v. Stumpf (1974) 37 Cal.App.3d 958 [112 Cal.Rptr. 739].) Those requirements were struck down in that case because the evidence failed to
The new test requires an applicant to run 300 feet (the length of a city block), scale a 6-foot wall (the height limitation for fences in Oakland), walk across a balance beam, run another 300 feet, register 75 pounds on a grip dynamometer device, and drag a 140-pound dummy for 50 feet, raising it to a 2-foot platform, all within 2 1/2 minutes. An applicant must scale the wall in two attempts and walk the balance beam in two tries. Anyone failing the test may retake it after four months. Of the women who have taken the physical agility test, only 15 percent passed in comparison to the 85 percent passage rate for men.
Before instituting the test as a selection device, an experimental study was made wherein the test was given to 41 male police officers and 20 female volunteers. The women varied in age, size, and physical condition. Of this group, 50 percent of the women failed to scale the wall on both attempts, while only 7.5 percent of the men failed. Ten percent of each sex failed the balance beam. The women averaged 87 pounds on the grip test, the men 140 pounds. No one failed the dummy drag and lift. The average time to complete all events for females was 2 minutes 28 seconds, for men 1 minute 48 seconds.
Plaintiff, a 27-year-old, 5-foot 4-inch, 118-pound female, applied for a position with the Oakland Police Department. She passed the written test but failed the physical agility test when she was unable to scale the six-foot wall in both attempts.1
We conclude the challenged test does not discriminate on the basis of gender and is rationally related to the requisite qualifications for an Oakland police officer. Accordingly, the test does not constitute a denial of equal protection or a violation of the 1964 Civil Rights Act.
Traditionally, the constitutional right to equal protection requires that state action bear some rational relationship to a legitimate governmental purpose. (E.g., Sail‘er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487].) However, when state action creates a suspect classification or abridges some fundamental right, such action becomes subject to strict judicial scrutiny and the state must show a compelling state interest in justification. (Id.)
Plaintiff asserts the strict scrutiny standard is applicable in the circumstances of this case, claiming the physical agility test discriminates against women and abridges their fundamental right to pursue employment.
Classifications predicated on gender are deemed suspect in California. (
While the test is neutral on its face, plaintiff contends its disproportionate disqualification of females invokes strict scrutiny. Plaintiff relies upon the minority opinion in Hardy v. Stumpf, supra, 37 Cal.App.3d 958, which states “a seemingly neutral job requirement which has the effect of disqualifying a disproportionate number of one sex is discriminatory and must be viewed under the strict scrutiny test.” (Id..) The statement is overbroad and in error. The United States Supreme Court, in dealing with an equal protection challenge to a job requirement which disqualified a disproportionate number of black applicants, held a personnel test which excluded, although not designed to do so, disproportionately large numbers of black applicants did not offend equal protection. (Washington v. Davis (1976) 426 U.S. 229 [48 L.Ed.2d 597, 96 S.Ct. 2040].) “Standing alone, [disproportionate impact] does not trigger the rule [citation] that racial classifications are to be subjected to the strictest scrutiny. . . .” (Id., at p. 242 [48 L.Ed.2d at p. 609].)
The occupation before us is hardly a common one. Law enforcement involves not only a close relationship to the “public interest and welfare” but also requires physical skills and technical knowledge including detailed knowledge of the law. Police officers must possess the physical ability to maintain public order, to protect persons and property, to avert wrongdoing, and to apprehend criminals. Application of the criteria enunciated in D‘Amico compels the conclusion no one possesses a fundamental right to become a police officer.
Further, a constitutional right to pursue an occupation presupposes an ability to perform the job. Neither the federal nor state Constitution suggests a person be employed absent the ability to satisfy job requirements. No prohibited classification occurs when a statute categorizes those who can and cannot meet job requirements.
In the absence of both a suspect classification and a fundamental right, we apply the traditional equal protection standard. The record clearly establishes a reasonable relationship between the physical performance test—particularly the six-foot wall climb—and job performance. The job analysis survey, upon which the physical performance test is based, indicated Oakland police officers in routine performance of their duties must occasionally scale walls or fences. With a city fence height limitation of six feet, it is reasonable to require police officer applicants to scale a six-foot wall as a prerequisite to becoming an Oakland police officer.
Plaintiff further contends the physical agility test violates title VII of the Civil Rights Act of 1964. (
The Equal Employment Opportunity Commission (EEOC), having enforcement responsibility, has provided guidelines to determine employment test validity. (
The job analysis survey demonstrates the test is significantly correlated to important elements of the job. (
It is contended herein the City of Oakland has not complied with an EEOC guideline requiring that current police officers pass the same
What the guideline tells us is that a female applicant, who because of some prior discrimination was unable to qualify under previous less stringent standards, cannot now be required to take and pass a more stringent test. The guideline thus does not purport to require an employer to continue to test its current employees in the same manner as it tests applicants for new positions, as has been urged.4 Moreover, there is no showing on the record that earlier testing standards, emphasizing strength rather than agility, demanded less of an applicant for a position as an Oakland police officer. Accordingly, the guideline has no application in the prevailing circumstances.
Evidence adduced at trial established a prima facie case of sex discrimination in that six times as many men as women passed the physical agility test. However, as already noted, the Oakland Police Department successfully demonstrated the physical agility test is related to job performance. Plaintiff failed to show an alternative test could effectively determine applicant‘s ability to perform the duties of an Oakland police officer while reducing the disproportionate impact upon women. Surely, it is difficult to imagine a more accurate way of testing ability to scale a six-foot wall than to scale one.
The judgment is affirmed.
Mosk, J., Richardson, J., Wright, J.,* and Sullivan, J.,† concurred.
TOBRINER, Acting C. J.—I dissent.
As the United States Supreme Court has pointed out, “Nothing in the [Civil Rights] Act precludes the use of testing or measuring procedures; obviously they are useful.” (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 436 [28 L.Ed.2d 158, 167, 91 S.Ct. 849].) On its face, defendants’ six-foot wall test appears to be a reasonable testing procedure useful in
Nevertheless, while Congress clearly did not intend by title VII of the Civil Rights Act to bar all employment tests, title VII does forbid the use of employment tests that are discriminatory in effect unless the employer meets “the burden of showing that any given requirement [has] a manifest relationship to the employment in question.” (Griggs v. Duke Power Co., supra, 401 U.S. at p. 432 [28 L.Ed.2d at p. 165].) This burden arises only after the complaining party has made out a prima facie case of discrimination, that is, has shown that the test in question selects applicants for hire in a racial or sexual pattern “significantly different from that of the pool of applicants.” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [45 L.Ed.2d 280, 301, 95 S.Ct. 2362]. See also
In the present case, the majority admit that the six-foot wall test has such discriminatory impact, and thus correctly conclude that the Oakland Police Department has the burden of proving that the test is demonstrably related to the job. As I shall explain, however, under the relevant title VII precedents and the authoritative federal guidelines,1 the Oakland Police Department has failed to meet its burden in a number of respects.
In the first place, while defendants do not require Oakland police officers to take the physical agility test or to be examined annually for physical fitness, defendants asked 41 police officers to take the present agility test as an experiment. Although several of the officers failed to scale the six-foot wall, defendants did not dismiss them.2 Thus despite
Moreover, the record in the present case reveals that before instituting the current physical agility test, defendants required that an applicant for the position of policewoman meet certain height and weight standards and perform only a series of simple physical exercises, not including wall-scaling. Defendants required male applicants to meet certain height and weight standards and to perform a physical exercise examination which was relatively demanding, but which did not include wall-scaling. In Hardy v. Stumpf (1974) 37 Cal.App.3d 958 [112 Cal.Rptr. 739], the court invalidated the City of Oakland‘s height and weight requirements for police officers. Defendants consequently replaced the invalidated requirements and both physical exercise examinations with the present agility test, without requiring incumbent employees to pass the new test.
Under the Equal Employment Opportunity Commission Guidelines, however, “A test or other employee selection standard—even though validated against job performance in accordance with the guidelines in this part—cannot be imposed upon any individual or class protected by title VII where other employees, applicants or members have not been subjected to that standard.” (
In addition, the same federal Guideline specifies that “Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.” (
As the majority acknowledge, this language stipulates that a female applicant for the position of Oakland police officer who, because of prior discrimination, was unable to qualify under previous less stringent standards, cannot now be required to take and pass a more stringent test. (See Albemarle Paper Co. v. Moody, supra, 422 U.S. 405, 434 [45 L.Ed.2d 280, 306]; Officers for Justice v. Civil Serv. Com‘n, San Fran. (N.D. Cal. 1975) 395 F.Supp. 378, 384-385.) “This Guideline does not require that the affected class member show that he would have been able to qualify in the absence of discrimination; it requires only that he show that he lost the opportunity to qualify.” (Original italics.) (Watkins v. Scott Paper Co. (5th Cir. 1976) 530 F.2d 1159, 1178, fn. 27, cert. den., 429 U.S. 861 [50 L.Ed.2d 139, 97 S.Ct. 163].) In the present case, however, defendants did not allow plaintiff to take either the simple exercise examination formerly required of female applicants, or the more strenuous exercise examination required of male applicants. Thus, by substituting the new six-foot wall test, a more restrictive selection procedure than that previously in force for women, and one which current male employees have never been required to pass, defendants have failed to afford “the same opportunities as had existed for other employees or applicants during the period of discrimination.” Under this Guideline alone, then, defendants’ six-foot wall test cannot stand.
Secondly, defendants’ use of the six-foot wall test is additionally invalid since defendants fail to demonstrate that “wall-scaling” does not involve a skill which an employee could easily attain in a brief training period. The federal Guidelines specifically provide that “The types of
In the present case, defendants utterly failed to demonstrate that women could not easily be trained to scale six-foot walls; indeed, the evidence in the record supports just the contrary conclusion. Defendants’ test administrator admitted that he had “demonstrated to a couple of women techniques which appeared to be beneficial to some women in getting over the wall. . . . It was like, if a woman took a test and failed it and she said, ‘Gee whiz, what do you think I can do?’ and I said, ‘A lot of people seem to have success doing it this kind of way. . . .‘” Thus the majority‘s conclusion is wrong: it is quite likely that defendants, with little effort, can teach female recruits how to scale six-foot walls once in uniform.
Thirdly, in addition to the fact that present police officers have not jeopardized their jobs by failing the six-foot wall test, and that defendants have not shown that wall-scaling is not an easily acquired skill, defendants’ attempt to prove the validity of the wall test is materially defective as measured against the federal standards. The Guidelines emphasize that “Evidence of a test‘s validity should consist of empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” (Italics added.) (
Although the fact that the applicable zoning ordinance permits fences to a height of six feet may justify the use of a six-foot wall in the test,3 defendants presented absolutely no evidence to establish that the smooth plywood wall utilized in the test was at all representative of walls and fences in the City of Oakland. When plaintiff asked defendants’ test administrator “whether or not there is a substantial number of walls in the City of Oakland [made of smooth plywood],” the administrator replied, “I don‘t know. I doubt that many—never mind, strike that.” Yet it is obvious that the test wall‘s composition considerably affects the difficulty of the scaling test. As a consequence, defendants’ failure to justify the use of smooth plywood is significant.
Finally, the federal Guidelines expect “that each operational cutoff score [in an employment test] will be reasonable and consistent with normal expectations of proficiency within the work force . . . .” (
While the ability to scale a six-foot wall may appear to be related to the effective performance of an Oakland police officer‘s duties, this
The defendants have failed to sustain that burden. As we have seen, although the employer utilized the test to screen out a disproportionate number of women, it never required all of its current employees to take the test, and it retained several present male employees despite the fact that they, like the present plaintiff, failed to scale the wall in two tries. Moreover, the record suggests that wall-scaling is a skill which may easily be acquired in a brief orientation and therefore is an inappropriate subject for a test which has adverse employment effect. Finally, the City of Oakland provided no statistically reliable data to support its use of a smooth six-foot plywood test wall. Under these circumstances, I believe that the majority clearly err in holding that defendants have adequately validated their test.
Accordingly, I would reverse the judgment of the trial court.
Appellant‘s petition for a rehearing was denied June 1, 1978. Bird, C. J., Tobriner, J., and Newman, J., were of the opinion that the petition should be granted.