Lanning v. Southeastern Pennsylvania Transportation Authority

VI. principled review function over a discretion; District Court’s and without acknowledge I that punitive damages evidence, relying on record it has reached problem continue to be a vexing both the $1,000,000 a bottom “lottery” line figure of state and federal courts. See Geye- Milo relying only on “experience its own lin, Philip Mottíb Hit with Record Dam- judgment.” Maj. Op. at 468-69. Such a J., 31, ages, WALL ST. March at A3 practice is neither principled jurisprudence (reporting punitive damage award of $80.3 nor is it Third Circuit jurisprudence. If million); Geyelin, Jury Milo Awards $50 that, the majority now holds light Ex-Smoker, J., Million to WALL ST. Feb. sequence Haslip in Keen- million). ($51.5 Yet, at A3 nei- cases— an in and Dunn in 1993—and in light ther the state nor federal courts have fash- materially different contexts of recipe ioned a sure-fire ques- solve the cases, these that our remittitur standard of much,”10 tion though of “how even we have review has now been whittled down so that prescribed a formula—our standard of re- analysis no aside from an ad panel’s hoc employed. view—to be experience “combined judgment” Nevertheless, a Court of Appeals cannot required in reviewing a district court’s re- “willy-nilly,” an effort to reach what it mittitur, then all the more why reason this considers “right figure,” to be the arbi- court must address and resolve this confu- trarily pull a punitive damage award from by sion establishing firm guidelines. the air ifas it were a lottery number and “in our judgment,” announce this is it! I Accordingly, I respectfully dissent from feel strongly review, that a court of such the standard of review and the resulting are, as we only must not guidelines furnish punitive damage award by announced bar, to the bench and but even more im- majority. Instead, I would affirm the Dis- portantly, it must set an example of cor- trict $50,000,000. Court’s remittitur of judicial rect behavior adhering to an- nounced principles of jurisprudence. To so,

do it must remain “within the limits judges bind judicial their function.” Rochin,

See 342 U.S. at 72 .S.Ct. 205.

Failure to do so can lead arbitrary,

capricious emotional judgments and/or be-

yond the realm of principle.

In this I believe the majority’s

decision, excellent in all other respects, has

failed to judicial adhere to its proper func- tiоn when speaking to the punitive issue of LANNING; Catherine Natsu Altovise damages. It has failed to recognize what Love; Kelly Dodson; Belinda Denise regard court must as our declared Dougherty; Lynne Zirilli, Keenan, Gumbs, standard of review—see Santi, Starceslci, Delli supra, etc. At the least, very the majority opinion has now

added confusion to this court’s standard SOUTHEASTERN PENNSYLVANIA referring to a “standard” derived from in- TRANSPORTATION AUTHORITY apposite (D.C. cases which pre-existed (SEPTA); Keenan. Civil No. 97-cv- It 00593). has substituted personal judgment In an problem, effort to alleviate punitive BMW, damages. New See 517 U.S. at Alabama, Jersey, 614-16, recently joined J., have (Ginsburg, S.Ct. 1589 dissent- growing number of ing) states which have re- (listing appendix govern- state statutes sponded legislation governing awards). ing punitive the award damage America,

United States of Pennsylvania Transpor

Southeastern (D.C. Authority

tation Civil No.

97-cv-01161). Lanning, Natsu Altovise

Catherine

Love, Kelly Dodson, Belinda Denise Zirilli,

Doughtery Lynne Appel

lants No. 98-1644. America, Appellant

United States of

in No. 98-1755. 98-1644,

Nos. 98-1755. Appeals,

United States Court of

Third Circuit.

Argued April 1999.

Filed June discriminatory under a disparate

exam as impact theory liability. today We hold Act of Rights that under the Civil entry on an discriminatory cutoff score be level examination must minimum.qualifica- shown to measure the for successful tions question in order to survive challenge. Because we disparate impact did not apply that the District Court find evaluating employer’s this standard justification discriminatory for its in we- will reverse cutoff score this judgment and remand the District Court’s under this standard. for reconsideration to remand on this light In of our decision basis, parties’ not reach the other we need assertions of error. Epstein, (Argued), Rau Jules

Lisa M. I. Messing & Rudovsky, Epstein, Kairys, Churchill, PA, Rau, Michael Philadelphia, appeal This comes to us from a Philadel- Law Center of Public Interest in by the District Court judgment entered PA, Appellants: for Philadelphia, phia, Pennsylvania favor of the Southeastern Love; Altovise Lanning; Natsu Catherine (“SEPTA”) after Authority Transportation Dodson; Dougherty; Kelly Denise Belinda January day a twelve bench trial Zirilli in No. 98-1644. Lynne generally do Although parties ap relevant to this dispute the facts not Lee, Acting Assistant Bill Lann Attor: are favorable peal, to the extent there General, Dimsey, ney Esquire, Dennis J. drawn, to be we must draw inferences (Ar- Libman, Simon, Leslie A. Robert S. prevailing as the them in favor of SEPTA Department of Jus- gued), United States addition, we must not In because party. Division, tice, Washington, Rights Civil of the District findings the factual disturb DC, in No. 98-1644. Appellant erroneous, much of clearly unless Krenzel, H. (Argued), H. Saul Saul adopted from following background PA, Associates, Philadelphia, Krenzel & District the facts found as Appellee —SEPTA. opinion. See its extensive memorandum Pennsylvania Lanning v. Southeastern MANSMANN, WEIS Before: Autk, 341605, at *l-*52 Tmnsp. 1998 WL GIBSON,* Judges. R. Circuit JOHN (E.D.Pa. 25,1998). June THE COURT OPINION OF A.

MANSMANN, Judge. Circuit au- mass transit regional is a SEPTA in Phila- thority principally that operates appeal, In we must determine this In in re- Pennsylvania. delphia, when apply standard to appropriate legal upgrade the need to sponse perceived to a justifica- evaluating employer’s an force, police SEPTA quality of its transit employer’s an challenging in an action tion to program designed initiated an extensive screening on an cutoff score * Gibson, sitting by designation. of ihe United Honorable John R. Circuit, Eighth Appeals for the StaLesCourt of ' department. part improve necessary perform As of this these tasks. The program, dedicated its transit offi- SEPTA SMEs estimated that it was reasonable to primarily patrolling subways cers them expect to run one mile in full gear responsibilities their and limited serve 11.78 minutes. rejected Dr. Davis property. In guards as other SEPTA upon estimate as too low based his deter- addition, increased the number of SEPTA any mination that individual could meet its officers from 96 to 200 and introduced a , this requirement. Ultimately, Dr. Davis they concept” patrol.1 “zone for the areas recommended a 1.5 mile run within also methods began consider Dr. explained minutes. Davis that comple- might upgrade physical which it fitness tion of this run require would that an police level of its officers. possess officer an aerobic capacity оf 42.5 SEPTA hired Dr. Paul Davis to mL/kg/min, that Dr. develop appropriate physical fitness Davis determined would be test for its Dr. ini- officers.2 Davis of SEPTA transit officer.3 tially met SEPTA officials order to objectives. ascertain SEPTA’s Dr. Davis Dr. Davis recommended that SEPTA determined that SEPTA was interested use the 1.5 mile run an applicant as fitness, enhancing physical the level of vig- screening test. Dr. Davis understood that general productivity police and of its SEPTA officers required would not be to force. Once Dr. Davis had determined run 1.5 miles within 12 in minutes objectives, SEPTA’s he went on a ride- duties, course of their but he nevertheless and, along police with SEPTA transit over recommended this test as an accurate days the course of two and approximately measure of the capacity necessary aerobic hours, twenty rode the SEPTA in trains perform job of SEPTA police transit perspective order to obtain a on the expec- upon officer. Based Dr. Davis’ recommen- tations of SEPTA transit officers. dation, SEPTA adopted physical fitness study Dr. Davis next conducted a screening applicants test for its which in- officers, twenty experienced desig- SEPTA cluded a 1.5 mile run within 12 minutes. “subject (SMEs), experts” nated matter in in Beginning the 1.5 mile run was an physical effort to determine what abili- administered as the component first of the required perform ties are test; physical fitness if applicant an failed SEPTA respons- transit officer. From the minutes, to run 1.5 miles in 12 appli- es Dr. study, Davis received in this he cant would be disqualified from employ- running, jogging, determined that ment as a SEPTA transit officer. walking important were SEPTA transit of- ficer tasks and that SEPTA officers were undisputed It is years that for the expected jog daily almost on a basis. an average 12% of applicants

Dr. Davis then women passed. asked the SMEs to de- SEPTA’s 1.5 physical termine what level of exertion was mile run in comparison to the almost 60% concept, designated 1. Undеr the physical zone SEPTA fitness tests for various eight separate covering subway sys- zones agencies. law enforcement .zone, typical tem. In a one Lieutenant assigned to command zone. Two Ser- initially 3.Dr. Davis decided that an aerobic geants assigned are also to the zone. Three capacity mL/kg/min of 50 per day shifts of officers tour zone. Beats police of SEPTA transit offi- assigned within the zones are to the individu- determining cer. After institution of al reassigned periodically officers. Beats are high such a standard would have a draconian to familiarize the officers entire with the zone. however, applicants, effect women Dr. patrol Officers beats their alone and on foot. goals Davis decided that the of SEPTA could expert by using mL/kg/min Dr. Davis be satisfied physiologist is an 42.5 stan- exercise who experience designing has extensive dard. steps For the to determine whether incumbent of- applicants passed.4 who of male 1996; period the time years physical 1993 and ficers who failed the have fitness litigation, pass rate for question adversely test have affected SEPTA’s compared pass was 6.7% to a 55.6% women ability, carry out its mission. addition, for men. In research stud rate promoted SEPTA has incumbent offi- on a confirm that a cutoff of minutes ies cers who have failed some or all of the ad disparately mile run will have 1.5 components physical of the fitness test. con on women.5 SEPTA verse given special recognition, SEPTA has also disparate run has a cedes that its 1.5 mile commendations, satisfactory perfor- impact on women. mance evaluations to incumbent officers conjunction implementation In with the physical who have failed the fitness test. test, screening fitness SEP- physical of its terminated, disciplined, never SEPTA has began, testing TA also incumbent officers removed, reassigned, suspended or demot- poli- 1991. SEPTA аny failing ed officer for to -perform transit any any por- officer who fails cy requires job. physical requirements incumbentfitness test to retest tion of the addition, error, due ato clerical SEP- on the failed element within three months. TA hired a female officer 1991 who portion physical each fitness For failed the 1.5 mile This officer run. has fails, officer test' that an incumbent been subsequently “decorated” SEPTA for that officer. goal interim set repeatedly and has been nominated those incum- initially disciplined SEPTA awards such as Officer of the Year and bent officers who failed the fitness test. Quarter. has Officer com- protests by Due to the incumbent officers’ outstanding mended her for her perfor- however, union, SEPTA discontinued its mance as a officer and has chosen discipline policy implemented and instead her to serve as one of SEPTA’s two defen- in- program an incentive rewarded sive tactics instructors. passing cumbent officers for their interim goals. fitness employs extremely low num- SEPTA force. police ber of women its transit According to SEPTA’s internal docu- that, July The District found as of Court ments, significant percentages of incum- employed only 16 SEPTA women all ranks have failed bent officers of police Only force. two of its 234 member By test.6 physical SEPTA’s fitness higher ranks than that however, these women hold 86% of incumbent officers Lanning, See 1998 WL patrol of officer. physical reached SEPTA’s fitness stan- any never taken 341605 at *27. dards. SEPTA has study predominately appli were white wom- it did seek in the 4. SEPTA contends that not higher Other re- testimony was en of socioeconomic status.' cants 1992. Credited of- ' studies, however, fered, however, were offered which or seven search that each' of the six ; higher- generally aero- that men have who took the 1.5 mile test in 1992 show women physiological due to Relying testimony, bic rate than women on the District failed. between the sexes. disрarate found that on differences pronounced slightly more than women was 1991, 1993, figures document, reflect. See and 1996 pointed one 6.The District Court Lanning, 1998 WL 341605 at *28. July example, indicating that between August percentage of 1994 and personnel failed- the fitness example, proffered study uniformed who 5. For one showed a) Age group 20-30: approximately of between the test was as follows: 10% men 47% officers; b) Age group of all of all 30-40: ages 20 to can a 1.5 mile run in 30% c) Age supervisors; officers and of all where of women in the 12 minutes 12% 12% and group of all officers age category this time. As 40-50: 52% same can achieve 45% d) Court, Age group testimony supervisors; 50-60: by all 55% noted the District supervisors. See entirely of all study may not be all officers 40% offered that this Lanning, participated 1998 WL 341605 *31. the women who reliable because B. SEPTA established that its capaci- ty requirement related and consis- 28, 1997, January satisfying On after all tent with necessity. See Lan- prerequisites, five women administrative ning, 1998WL 341605at *35. 1.5 mile run brought who failed SEPTA’s against Title VII class action SEPTA on The District support Court also found of all 1993 female applicants, behalf 1996 for this in an expert report conclusion applicants female and future appli- female submitted behalf of SEPTA Dr. employment police cants for as SEPTA Robert Moffatt. Dr. Moffatt simulated a officers who have been or will be denied training course and concluded that officers employment inability reason of their capacities with aerobic of mL/kg/min physical requirement meet the entrance had better a 7-8% decrement in their abili- running 1.5 miles in 12 minutes or less. ty perform physical activities after a run February 18, Department On minutes; approximately three officers Justice, conducting appropriate after capacity with an aerobic of less than 45 investigation of SEPTA’s mL/kg/min exhibited 30% decrement in practices meeting prece- all conditions physical ability after the same run. The VII, dent under Title also filed suit on District Court found that Dr. Moffatt’s behalf of the challenging United States study “the demonstrates manifest relation- test, physical SEPTA’s entire fitness in- ship of aerobic to the critical and cluding the 1.5 mile run. The District important duties of a SEPTA transit properly jurisdiction exercised over ” officer.... Id. at *68. challenging these Title VII actions SEP- hiring practices TA’s pursuant to 28 U.S.C. The District Court entered judg 21, 1997, § April 1331. On the District ment favor of SEPTA on all claims. Court consolidated the two actions for all Both the plaintiffs individual Unit purposes up to and including trial. ed States appeals have taken from the commenced, District litigation judgment, After Court’sfinal over which jurisdiction we expert pursuant hired statisticians to have reports submit to 28 U.S.C. examining appeal, statistical 1291. On relationship plain be- individual tween the aerobic capacity of SEPTA’s tiffs applied assert the District Court arrests, officers and their legal number “ar- incorrect evaluating standards rest rates”7 and number of necessity commenda- SEPTA’s business defense and tions. In these reports, the statisticians that the District Court made erroneous concluded that there was a státistically findings of fact in determining that SEP significant correlation between aero- high TA’s 1.5 mile run does not violate Title arrests, bic capacity and arrest rates and Although VII. the United initially States addition, commendations. In expert one challenged implementation SEPTA’s of its prepared report a test, that estimated that physical entire appeal fitness on 51.9% persons of the joins arrested for serious United States plaintiffs individual crimes between 1991 and 1996 an ae- in asserting solely had error respect robic mL/kg/min of 48 and 27% of the District Court’s determination that those arrested had an aerobic capacity of SEPTA’s 1.5 mile run is not violative of less than 42 mL/kg/min.8 upon Based Title VII. Because the issue of whether the reports, these the District Court held that District Court applied legal the correct 7. “Arrest rates" expressing category were tabulated 8. The of “serious crimes" includes homicide, assault, rape, robbery, aggravated number of arrests made an officer as a theft, burglary, category and auto percentage theft. This reports of the number of incident approximately per- of arrests accounts for ten involving App. that officer. See at 3040-41 reported cent all per- incidents and seven (Siskin Expert Report). reported App. cent of all arrests. See at 3040. (Siskin Expert Report). of.law, in plena- Griggs one oúr review is ed the seminal case of v. Duke standard is Co., ry. Power 401 U.S. S.Ct. (1971). L.Ed.2d In embracing dispa- II. impact, rate Ti- recognized Court that VII’s im disparate Under Title tle only proscribe VII meant not liability, pact theory plaintiffs establish discrimination, overt prohibit but also to prima disparate impact by a facie case of form, that are fair in “practices but dis- demonstrating application facially of a in criminatory operation.” Griggs, 401 in signifi neutral standard has resulted a U.S. 91 S.Ct. 849. The Court made cantly discriminatory hiring pattern. See clear that what required by is Title VII is Rawlinson, 321, 329, Dothard v. artificial, arbitrary, “the removal of (1977). 53 L.Ed.2d 786 unnecessary employment barriers to when plaintiffs pri- have a Once established operate invidiously the barriers to discrim- ma facie the burden shifts to the inate on the imper- basis of racial or other employer show missible Id. Accordingly, classification.” “job in practice position related for evaluating the Court announced that in question and consistent with business ne fair in practices discriminatory form but 2000e-2(k). 42 U.S.C. cessity....” operation, touchstone is ne- “[t]he business burden, meet this employer Should cessity.” Id. if plaintiffs may prevail they still can show employment practice that an alternative Court, however, The was unclear in ar- disparate impact has less and would also ticulating employer what an must show to employer’s legitimate serve the necessity. demonstrate The Paper interest. See Albemarle Co. v. employer’s Court couched the burden 405, 425, Moody, 95 S.Ct. showing practice terms of that its is “relat- L.Ed.2d 280 job performance”; ed to “bear[s] demon- Because concedes that its 1.5 strable relationship perfor- to successful women, disparate impact mile run has a used”; jobs mance of the for which it was prong disparate impact the first relationship employ- has “a manifest analysis appeal.9 is not at issue in this question”; “demonstrably ment in and is Rather, appeal this focuses our attention job performance.” reasonable measure of .proper evaluating on the standard for 431, 432, Id. .at “job 1.5 mile run re- whether SEPTA’s standard, however, applying Court position question lated for the and con- rejected employer’s justification necessity” sistent with business under the intelligence its standardized Rights Act of 1991. Because the Act Civil diploma requirements generally tests and incorporates instructs this standard improve quality would the overall segments prior Supreme selected power plant. work force jurisprudence on the business neces- that, although requirements held these doctrine, sity history we examine the useful, may they be could not be used to this doctrine in order to resolve this disproportionately protected exclude a threshold issue. group employer when the failed to show A. they applicant’s ability test an do not job question. Id. at 431- disparate impact theory of discrimi- 33, creat- judicially under Title VII was 91 S.Ct. 849. nation argument, appeal, 9. evidence counsel at this evidence has On SEPTA offered to es- oral applicants tablish that the bearing upon analysis appeal individual female no our in this who failed SEPTA’s 1.5 mile run demonstrаt- its has because SEPTA has conceded that test preparing ed a cavalier attitude in for and disparate a on women. severe taking aptly by plaintiffs’ the test. As noted 486 test, spoke particular

The Court next the issue of cutoff on the is a score necessity Paper in Albemarle permissible business Co. measure of the minimal 405, 2362, 422 Moody, U.S. 95 S.Ct. qualifications of new workers entering (1975). Albemarle, In an em- L.Ed.2d 280 jobs. level lower ployer sought justify the use of verbal 434, Id. at 95 S.Ct. 2362. The Court ac- high diploma exam and require- school cordingly held that must consideration be in determining promote ments whether to given possible to the use of testing as employees positions to more skilled its promotion device as rather than a screen Albemarle, 408-11, paper mill. at U.S. entry jobs. for into lower level Id. Due to trial, 2362. In preparation ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​‌‌​‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​‍S.Ct. for inadequacies several of the employer’s vali- employer psychologist hired an industrial studies, dation the Court held that complete showing validation studies employer had failed to show its re- job the tests were related they because quirements job were related position had a statistically significant correlation 435-36, in question. Id. at 95 S.Ct. 2362. supervisorial ratings several jobs in groups question. Id. at 429- The next Title VII case to raise the 30, Court, 95 S.Ct. 2362. The neverthe- necessity issue for the Court’s less, rejected employer’s contention Rawlinson, consideration was Dothard v. requirements job were related. 97 S.Ct. 53 L.Ed.2d 786 The Court that “discriminatory held (1977).10 Dothard, applicants female shown, tests are impermissible unless challenged prison’s minimum height and methods, professionally acceptable to be weight requirements prison for its guard ‘predicative of significantly or correlated positions as violative of Title VII. On the with important elements of work behavior issue of business necessity, the Court which comprise job or are relevant to the made clear that “a discriminatory employ jobs which candidates are being practice ment must be shown to be neces evaluated.’” Id. at 95 S.Ct. 2362 sary job to safe and efficient 1607.4(c)). (quoting 29 CFR In so hold- to survive a challenge.” Title VII Do ing, the Equal Court noted that the Em- thard, n. U.S. ployment Opportunity Commission rejected The Court the prison’s assertion (EEOC) professional Guidelines for stan- that height and weight requirements have dards of test validation are entitled to a relationship to the unspecified amount of great deference in determining whether an strength job perfor essential to effective employer has demonstrated that its re- mance, holding strength that if is a bona quirements 430-31, related. Id. at fide related quality, prison could 95 S.Ct. 2362. rejected The Court test it directly by adopting and validat employer’s inadequate validation studies as ing fairly administered strength test. respects several under the EEOC 331-32, Id. at 97 S.Ct. 2720. example, Guidelines. For the Court re- jected the they studies because focused on The Court’s next definitive statement on qualified employees most near top necessity doctrine is found progression, line of stating: Co., Atonio, Wards Packing Cove Inc. v.

The fact that the best of employ- those 104 L.Ed.2d (1989), ees working top near the of a line of 733 where a majority of the Court progression score well on a test does previous not deviated from its business neces- test, necessarily mean that that sity jurisprudence or some adopting a more lib- Dothard, however, 10. Prior lo the Court included some is not a Tide VII we cannot necessity language related to the business language Washington treat the as reflective Davis, Washington doctrine in v. 426 U.S. prc-Wards necessity Cove business doc- 229, 2040, (1976), 96 S.Ct. 48 L.Ed.2d 597 applicable trine to Title VII cases. equal protection Washington case. Because

487 necessity.11 primary eral test for business Accord- One of the purposes of the Act ing to the Court: codify the concepts “to of ‘business a dispositive necessity’ issue is whether chal- ‘job

[T]he related’ enunciated serves, practice in a lenged significant the Supreme Court in Griggs v. Duke way, legitimate employment goals the Co., 424, 849, Power 401 U.S. 91 S.Ct. 28 employer. The touchstone of this (1971), L.Ed.2d 158 the other Su- a inquiry is review of the em- reasoned preme prior Court decisions to Wards justification for ployer’s his use of the Atonio, Packing Cove 642, Co. v. 490 U.S. A challenged practice. mere insubstan- 2115, (1989).” 104 L.Ed.2d 733 justification tial will regard in this not 1991, Rights Civil Act of Pub L. No. 102- suffice, because such a low standard of 166, 3, 1071, § 105 Stat. 1071 As permit review would discrimination to be part of Griggs, this codification of the Act practiced through the use of spurious, made that clear both the burden of produc- seemingly employment practices. neutral tion and persuasion the burden of in estab- time, though, At the same there is no lishing necessity business rest with the requirement that the challenged practice 2000e-2(k). employer. 42 See U.S.C. “indispensable” be “essential” or it employer’s pass business for mus- addition, In Act codified the business ter.... doctrine, necessity by using the following Cove, 659, Wards 109 S.Ct. language: (citations omitted). addition, In An unlawful employment practice Court made clear that at the business ne disparate impact based on is established cessity stage litigation, of Title VII subchapter only under this if— only the employer produc bears burden of tion; persuasion the burden of remains on (i) complaining"party a demonstrates disparate impact at all plaintiff times. that a respondent particular uses a em- previously Id. As we have recognized, the ployment practice dispa- causes a may reasonably Wards Cove standard be race, color, rate the basis of viewed as a departure from the more strin sex, religion, or national origin and the gent business necessity standard under respondent fails to demonstrate that the Griggs and its рrogeny. See Newark challenged practice is related Branch, Harrison, N.A.A.C.P. v. Town of position in question and consistent ivith (3d 792, Jersey, New 940 F.2d necessity; business Cir.l991)(noting that “argu Wards Cove (ii) complaining party makes the ably necessity diluted the business bur demonstration in subpara- described Griggs). den” under (C) graph respect to an alternative B. employment practice respondent and the Cove, adopt refuses to such alternative em- response to Wards Con gress Rights enacted the Civil ployment practice. Act of 1991. er, prior

11. Two cases to Wards Cove forecast 440 U.S. at 587 n. 99 S.Ct. 1355. changes Similarly, opinion plurality some of to come. In New York v. in Watson Beazer, Trust, City Transit Auth. Fort Bank & 487 U.S. Worth (1979), (1988), suggested 59 L.Ed.2d 587 the Court S.Ct. L.Ed.2d disposed by holding employers of a Title VII case could meet their burden of plaintiffs prima establishing necessity simply failed to establish a facie business ad- Court, disparate impact. vancing legitimate case of howev reason business er, Watson, necessity practice question. commented on the business doc 487 U.S. at footnote, language trine in dicta. aIn the Court stated 108 S.Ct. 2777. While the prima clearly that even if a facie case had- been these cases foreshadowed Court’s established, Cove, employer holding language would have shown in Wards had nev- necessity by establishing by majoriLy er embraced of the Court been practice significantly legitimate binding necessity serves its as the standard for business goals prior safety efficiency. Cove. to Wards Beaz- § the 2000e-2(k)(l)(A)(emphasis plied Act’s standard to a Title U.S.C. VII added). that in challenge analysis. The Act further instructs have done so with little lan- necessity See, Atlanta, its business interpreting e.g., Fitzpatrick City v. than (11th other guage, statements 1112, “[n]o Cir.1993)(noting F.3d 1117-18 ... interpretive shall be memorandum Act Rights statutorily that Civil of 1991 of, history legislative or relied considered ruling reversed Wards Covebut in favor of in upon any way legislative history....” as employer practice because was demonstra 1991, Act of Pub L. No. 102- Rights Civil bly necessary “important to meet an busi (1992). 166, 105(b), 1071, 105 Stat. goal”); Bradley v. ness Pizzaco Nebras interpretive memorandum The referenced (8th ka, Inc., 7 F.3d 797-98 in of the Act in portion states relevant Cir.1993)(noting Griggs standard was part: by Act and holding reinstated “job necessity” The terms “business and standard). employer Griggs failed to meet related” are intended to reflect the con- proscribes Because the Act resort cepts Supreme enunciated legislative history exception with the Co., Griggs v. Duke Power 401 U.S. interpretive one short memorandum en- (1971), 91 S.Ct. 28 L.Ed.2d 158 caselaw, dorsing starting selective our Supreme the other Court deci- point in interpreting the Act’s business prior Packing sions to Wards Cove Co. Atonio, 2115, necessity language must be that interpre- (1989). tive 104 L.Ed.2d 733 memorandum. The memorandum Congress makes clear that intended to en- 28,680 Cong. Rec. After the dorse the necessity business standard Act, passage proponents of the of both a Griggs enunciated in and not the Wards necessity test for strict business interpretation Cove of that By standard. requirement victory more liberal claimed Congress’ distinguishing Griggs between in the adopted by standard the Act.12 Cove, and Wards we must conclude that III. Congress viewed Wards Cove as a signifi- cant Supreme departure Griggs. from yet interpret Accordingly, Court has “job the Act position question clearly Griggs related for the because chooses Cove, necessity” consistent business over Wards the Court’s interpreta- addition, adopted necessity standard the Act. In tion of the standard appeals our sister courts of that have ap- Wards Cove not the Act.13 does survive Carvin, Spiropoulos, Defining C. supra 12. See Andrew See note at 1157-64. Pur- Necessity Disparate Business argument, necessity suant to the the business Defense Finding Cause Action: the Golden Impact simply standard announced in Wards Cove Mean, 74 N.C. L.Rev. 1516-20 Griggs clarified and therefore is not inconsis- (1996)(outlining respective positions tent аpply with the Act’s command to debate); compare both sides to the also Mi- addition, Griggs. standard enunciated in it Carvin, Disparate Impact chael Claims Under legislative history is asserted that due VII, the New Title 68 Notre Dame L.Rev. 1153 Act, improper apply it would be a strict (1993)(arguing good that Wards Cove is still necessity argument, standard. This 1991); Rights law after Civil Act of with Su- however, ignores important aspects two Grover, Necessity san S. The Business Defense interpretation Act which constrain our Cases, Disparate Impact Discrimination First, adopted. interpretive standard (1996)(arguing Ga. L.Rev. 387 for a strict memorandum’s distinction between Act); necessity business Note, standard under the significant and Wards Covecasts doubt on the Rights The Civil Act 1991: The Busi- Congress assertion that read Wards Cove as Standard, Necessity ness 106 Harv. L.Rev. 896 Second, simply Griggs. a clarification of (1993)(asserting that Wards Covedoes not sur- precludes considering legisla- Act us from Act). vive the history upon argument tive which this relies cognizant contrary 13. We argument that a support. Accordingly, argu- we find this has been advanced in which it is asserted that ment to be devoid of merit. controlling Wards Cove remains the standard. turn now to articulate the stan made clear that “a discriminatory We employ- necessity' dard for business most-con practice,” ment such as a discriminatory —one Griggs pre sistent with and its Wards Cove entry 'exam, cutoff score on an level “must ' begun by The laudable mission progeny. necessary be shown be to- sáfe and Griggs the in was the'eradication of Court job efficient performance to survive a Title through application discrimination Dothard, challenge.” VII 433 U.S.' at 332 ' n discriminatory fair in in practices form but n. practice by eliminating unnecessary barri Taken Griggs, Albemarle and together, employment opportunities. In the ers Dothard that in teach order to show the hiring context of a exam with a cutoff necessity discriminatory business of a cut- discriminаtory to have a ef score shown an employer off score must demonstrate fect, the standard that best effectuates this its cutoff the minimum measures implicit applica in the Court’s mission qualifications per- successful necessity tion of the business doctrine to job question. formance of the in Further- that, i.e., Griggs, in a discrim employer in-, more, because Act instructs us to inatory impermissible cutoff score is unless terpret necessity language its business in qualifica to measure the minimum shown Griggs conformance with preWards necessary for performance tions successful progeny, Cove we must conclude that the job in question. Only this standard necessity language Act’s business incorpo- begun by can effectuate the mission rates standard. in Griggs; only by requiring em ployers to demonstrate their discrimi Our conclusion that the Act incorporates natory cutoff score measures the minimum this is further supported by standard .the qualifications necessary for successful per necessity language adopted by in job question formance of the can we be Congress “job the Act. chose the terms certain to eliminate the of excessive use position question” related for the in disparate impact cutoff scores that have a necessity.”- “consistent with business Ju- imposing on minorities as a method of application dicial of a standard focusing unnecessary op barriers solely qualities on whether the measured portunities. entry level exam bear some relation- The evolution of the Court’s articulation ship job question in imper- would necessity of the business doctrine both missibly necessity write out the business Albemarle and Dothard reinforces the con- prong of the Act’s chosen standard. With clusion that implicit this standard is both score, respect discriminatory to a cutoff and central to its mission. In necessity prong the business must be read Albemarle, the explained that dis- to demand an inquiry into whether criminatory tests must be validated to qualifications score the minimum reflects they “predictive show that of ... im- necessary perform job successfully the portant elements of work which behavior Guidelines, question. See also EEOC ... ... comprise for which candi- 1607.5(H) (noting 29 C.F.R. that cutoff are being dates evaluated” and that as to scores should “be. set so be reason- higher employe.es scores of the level do not able and consistent with -normal expecta- necessarily validate a cutoff score for the acceptable proficiency tions of within the qualifications minimum force.”). work Albemarle, entry at an level. U.S. at 431, 434, addition, Congress’- decision to simply S.Ct. 2362. This is importance policies way saying discriminatory emphasize another must, underlying disparate impact theory cutoff scores be validated to show they qualifications through sup measure the minimum discrimination its codification necessary for dis ports application successful of this standard to Dothard, job. Similarly, criminatory disparate the Court cutoff scores. The Only necessity of discrimination combats doctrine

impact theory discriminatory examines cutoff scores intentional, discriminatory pol obvious not light qualifications of the minimum that icies, covert discrimination in type but necessary job ques- to the in are em facially practices neutral which adequately can successfully tion address exclude, unnecessarily dispa and ployed this subtle form of discrimination.15 rately, groups from protected adoption in the Inherent opportunities. Accordingly, we hold that the business recogni the theory this of discrimination is necessity by the Act adopted standard job an employer’s requirements tion that interpreted in accordance with the must be standards may incorporate societal based by the Supreme standards articulated neсessity upon but rather histori upon not in Griggs pre-Warcfe and its Cove cal, discriminatory A biases.14 business which that a discrimina- progeny demand wholly that an necessity standard defers to tory cutoff score be shown to measure the employer’s judgment as to what is desir qualifications necessary minimum for the employee complete in an therefore is job able in ques- successful inadequate combating in covert discrimi ly disparate impact tion in order to survive a upon prejudices. challenge.16 nation societal based interesting options 14. For an discussion on male-ori would be available to SEPTA. For 1) ented biases in the labor market see Maxine example, SEPTA could: abandon the test Eichner, Getting N. Women Work That Isn't hiring requirement aas but maintain an in- Challenging Biases Women's Work: Gender in program encourage centive an increase in VII, Workplace Under Title 97 Yale LJ. 2) capacities; the officers' aerobic validate a also, Hurley v. 1397 See The Atlantic capacity cutoff score for aerobic that mea- (3d City Dept., 174 F.3d 104 n. 5 Police necessary capacity sures the minimum to suc- egregious Cir.1999)(noting sexual harassment cessfully perform and maintain incen- subjected to which a female officer was programs higher tive levels; to achieve even aerobic colleagues); Department her male Mazus 3) non-discriminatoiy or institute Pa., (3d of Transp., Com. 629 F.2d 876 capacity test for excessive levels of aerobic J., Cir.1980)(Sloviter, dissenting)(noting alle such as a test that would exclude of men 80% demonstrating gations prevalent ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​‌‌​‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​‍male attitude through separate as well as of women 80% "type that construction work is not the capacity aerobic cutoffs for the different sex- perform). work” women should options help es. Each of these would goal increasing achieve its stated implemen- 15. We need be conсerned not that running without afoul of Title VII forcing tation of standard will result options require hiring by and none of these employers adopt quotas, a result that quota. would be inconsistent with the mandates of employer Title VII. If an can demonstrate that Airlines, 16.Relying upon Spurlock v. United discriminatory its cutoff score reflects the Inc., (10th Cir.1972), F.2d and 475 216 like qualifications necessary minimum for suc- appeals, cases from our sister courts of job performance, cessful it will be able to dissent asserts that this standard should not not, employer continue to use it. If must apply score, to SEPTA because the of SEPTA abandon that cutoff is free to devel- but implicates public transit officer issues of op non-discriminatory practice either a which Act, however, safety. Under our inter goals, equally furthers its ry practice discriminato- pretation necessity language of the business can that meet this standard. Nothing concepts Griggs necessity in the is limited to "the enunciated stan- Co., requires employers employees Supreme dard to hire Court in 424, v. Duke Power ethnic, gender numbers to reflect the racial or L.Ed.2d 158 (1971), make-up community. Supreme in the other Court deci prior Packing Cove Co. v. sions nio, to Wards Ato following example up'on based the facts S.Ct. Assuming of this case illustrates this point. (1989).” Cong. L.Ed.2d 733 See 137 Rec. disparate that SEPTA’s 1.5 mile run has a 28,680 added). (1991)(emphasis Because impact on women and that SEPTA can not Supreme adopted Court never the hold show that minute the 12 cutoff measures the Cove, ing Spurlock prior capacity necessary to Wards minimum aerobic to -be a that, Act, officer, we successful not clear under are not con transit it does follow Spurlock required sider as authoritative. Further SEPTA would then be to hire more, equal proportion Congress women in to men. Several if had intended to endorse

IV. “implicitly approves employment serve, practices significantly but are Although pur the District Court to, required by neither nor “job the Act’s related to ported apply interests”) employer’s legitimate business position question and consistent Cove, with Wards 490 U.S. at necessity” standard to SEPTA’s . (stating standard is run, cutoff score on its 1.5 mile it is clear serves, challenged “whether a practice from the District Court’s memorandum significant way, legitimate employment opinion apply that it did not the standard goals of the employer” noting implicit Griggs we have found to be requirement there is no that the practice incorporated by the Act. The District essential). stated, previously be As we the- rejected Court the formulation of the Wards Cove standard does not survive the Dothard, Griggs standard found in charac Act. dicta, terizing upon it as and relied instead language City found New York Transit The District applica Court’s tion, Beazer, Auth. v. understanding of its of business neces prior 59 L.Ed.2d 587 As our sity justification to SEPTA’s business fur clear,17 the discussion makes Beazer lan ther that illustrates the District Court did guage dicta and the apply legal is Dothard standard is not the correct standard. As Moreover, matter, binding under the Act. the an initial the District Court upon Beazer dicta which the District Court seemed to exper conclude that Dr. Davis’ adopted by relied mirrors the standard justify tise alone is sufficient to the 42.5 Compare Banning, mL/kg/min Wards Cove. 1998 WL capacity cutoff mea Beazer, (noting 341605 at *54 that in the sured the 1.5 mile run.18 conclu- .This holding Spurlock, jurisprudence required by the of it could have Cove done Wards as affirmatively. Accordingly, so because the Act. interpretation Supreme Act limits our to jurisprudence supra 17. and does not See note 11. otherwise Spurlock, liberty endorse we are not at to adopt holding Spurlock junc- at this relying predominately 18. upon While Dr. Moreover, Spurlock ture. to the extent that expertise, point Davis’ District does and other cases from our sistеr courts of study a completed to which Davis Dr. for appeals suggest can be read to that mini- County, Maryland Anne in which Arundel he apply qualifications mum do not to certain mL/kg/min.aerobic concluded a 42.5 that ca- types employment, these cases incon- pacity predicted success as an Anne Arundel teachings sistent with the and are County police finding officer. Absent a accordingly uninformative under the Act. County police the work of an Anne Arundel comparable officer is to SEPTA transit officer Furthermore, to the limited extent work, finding a the District Court did not pre-Wanis Supreme juris- Court’s Cove make, n study reliance this validation is mis- prudence public safety instructs that is le- 1607.7(B)(2); § placed. See 29 see C.F.R. consideration, gitimate application of the 1607.7(B)(3)(explaining also C.F.R. .29 necessity standard SEPTA is to. employers validation created for studies other jurisprudence consistent with that because fairness”). study must also include "test public safety the standard itself takes into Furthermore, is unclear from Dr. Davis’ If, it example, consideration. for SEPTA can report study's Arundel 42.5 whether Anne inability show on remand that the of a SEP- n mL/kg/min actually quali- cutoff measures for TA transit officer to meet a certain aerobic significant police perfor- ties SEPTAtransit to significantly public jeopardize level would n (Davis Report) Compare App. mance. at 3134 safety, showing relevant would be (cid:127) (noting mL/kg/min that 42.5 level for Anne determine if that level is for the study significant carrying an Arundel job. Clearly successful generally unspecified weight amount of poses significant a SEPTA officer who risk arrests) (Davis effecting App. at 3132 public safety could not be considered to (stating police Report) officers are performing job successfully. ”[t]ransit be1 his We are them, likely accordingly application more to have incidents come to confident that necessity opposed rеsponding to the scene of an standard to SEPTA is ful- as mission, presence ly Supreme pre- By of the officer consistent with the Court's event. Lanning, 1998 WL 341605 at *57.20 teachings Griggs, able.” disregards sion experts Dothard in which the Court Albemarle and The validation studies of SEPTA’s judgment alone is insuffi- made clear relied upon which the District Court employer’s discrimina- cient to validate this conclusion demonstrate the support fundamentally, More tory practices.19 extent to which this standard insufficient however, opinion in its extensive nowhere Act. The general import under the these consider did the District Court whether higher is that the an officer’s aero- studies mL/kg/min cutoff reflects Dr. Davis’ 42.5 is able capacity, bic the better officer necessary to the minimum aerobic job. Setting va- perform aside the successfully of SEPTA studies, lidity of this conclusion alone these transit officer. mL/kg/ does Dr. Davis’ 42.5 not validate min cutoff under the Act’s business neces- Instead, upheld the District Court best, “readily justifi- sity it standard.21 At these studies show this cutoff because deterrent, maintaining have derived maximum The District Court seems to is that of a visibility. Occasionally, Principles will come officers this standard from the upon assaults or criminal activities such as Validation and Use Personnel Selection of robberies, part, ("SIOP for the most the officer Principle"), principles but Procedures attempt will to control a situation such as published Society by the for Industrial and disorderly compliance (pay- conduct or force Organizational Psychology professional as a fares) ing having make ar- without to an conducting guideline for validation research rest.”); (Davis App. see also at 3139 Re- personnel and To the selection. extent that stating porL)(quoting experienced as officer Principles the SIOP are inconsistent with opinion important my most factors "[t]he Griggs the ne- the mission of being good Act, a officer is to be able to think аdopted cessity by they standard' the clearly an at all times verbalize or [sic] are not instructive. people.... dealing when with all articulate Running quickly physically demanding, al- 21. The Court has cautioned studies done though system, dealings the transit most litigation anticipation of validate dis to close, altercations.”). physical are addi- In criminatory employment tests that have al tion, it is unclear from the record whether the ready given been must be examined with study properly Arundel itself was vali- Anne great danger objec care due to the of lack of dated. Albemarle, tivity. 422 U.S. at 433 n. dispa S.Ct. 2362. We also have warned in a danger allowing employer an 19.The to story rate context that "the statistics by relying upon carry simply its burden an depends, beauty, upon eye tell not unlike appro- expert’s judgment unvalidated as to an and ear of the beholder” and that "we must priate testing cutoff score in a device is illus- apply a critical and ear to one di cautious determining appro- this case. an trated presentation.” Bryant mensional statistical priate capacity, cutoff for aerobic Dr. Davis Servs., Inc., International Sch. 675 F.2d rejected SMEs' estimate of the minimal (3d Cir.1982). A critical evaluation qualifications necessary perform job upon by statistical studies relied the District though experienced even these SMEs were aspects Court in this reveals several transit officers. Dr. Davis then determined be, these studies that we find to at a mini that "a SEPTAtransit officer needs an aerobic mum, disconcerting. ml/kg/min successfully per- capacity of 50 following only represen- The concerns a tanning, form a number of tasks.” 1998 WL sample possible tative deficiencies in these Davis, added). (emphasis 341605 at *16 Dr. 1) ability studies: While to make an arrest however, requirement, finding this revised may aspect important job, be an goals that "the of SEPTA could be satisfied absolute number of arrests "arrest rates” using mL/kg/min 42.5 standard” after deter- a necessarily do not correlate with successful mining higher that the limit would have a job performance. App. (noting See at 3132 "draconian” effect on women. Id. There is generally attempt that SEPTA officer should opinion no indication in the District Court’s having without to make control situation Dr. Davis that the as to how determined low- arrest); 2) Where, study and arrest an arrests er standard would be sufficient. as here, disproportionately large examined a rates the cutoff score chosen has a discrimi- capacity natory impact, Griggs prohibits with an aerobic disparate number of officers exactly mL/kg/min compared type arbitrary over 42 to the number establishment of employment opportunities. capacity of officers with an aerobic under barrier to job that aerobic is related to the Court’s understanding of business necessi- ty, A which study requires only of SEPTA transit officer. show- that a cutoff score better,” however, SEPTA, “readily justifiable,” be ing that “more is has no as well as any employer other jobs whose entail bearing appropriate any on the to reflect cutoff level 'physical capability, employ could qualifications necessary the minimal unnecessarily high cutoff score on its successfully perform question. physical abilities entrance exam in an ef- testimony Dr. Siskin’s is particu fort virtually to exclude all by justi- women larly point. instructive on this Dr. Siskin fying this'facially'neutral yet discriminato- testified that in view of the linear relation ry practice on theory that more is ship aerobic capacity between and the ar better.22 This result contravenes parameters, any cutoff rest score can be why, demonstrates Griggs, under justified higher since aerobic capacity lev discriminatory cutoff score must be shown get you els will more field to measure qualifications minimum (ie., better”). Lanning, “more is See successfully at *41. question,23 WL 341605 Under the District See, likely level which skewed results. ous. We validity comment here on the e.g., App. (comparing at 3053 arrests of 231 these studies to draw the District Court's capacities officers with aerobic under the 42 encourage attention to these concerns and to mL/kg/min arrests of 813 officers with District to take a critical look at studies, capacities mL/kg/min)'; over the 42 necessary, these if on remand. also, § 1607.14(B)(6)(noting see 29 C.F.R. potential Such result has the to have a upon procedure a selection “[r]eliance significant impact detrimental on the amount significantly which is related to a criterion measure, type employment opportunities of avail- upon study but which based a is able Obviously, to women. under a "more is involving large subjects a number of and has theory, employers better” police such as de- subject a low correlation coefficient will be partments, departments fire and correctional large close if it has a im- adverse review develop physical facilities could 3) tests un- pact.”); comparison aerobic, capaci- The of necessarily high effectively cutoffs that would ty helpful with commendations is not absent exclude Perhaps women from their ranks. finding subjective as to the considerations in- obvious, however, less is the that this awarding volved in bemarle, commendations. See Al- 432-33,. 2362; result could have on industries where 422 U.S. at . strength 4) minimally job even related to in emphasis The studies' on arrests for "seri- question. example, companies For all en- suspect; ous crimes” is these arrests account gaged delivery, any in construction or other only repre- of all arrests 7% and therefore type physical permitted of labor would be only aspect job. generally sent a small of See develop unnecessary strength requirements 1.607.14(B)(6)(noting 29 C.F.R. that reli- theory on the that "more is better” or "the single ance on selection instrument which is worker, stronger job gets the faster the only many job related to one of duties will be clearly unacceptable 5) done.” This result is réview); subject to close SEPTA’stable on given policies underlying both Title VII performance field its officers belies the disparate impact theory and the of discrimi- a contention there is strict linear rela- nation. tionship capacity; of arrests to aerobic offi- mL/kg/min cers at less than 37 had aver- age compared say actually arrests of 13.6 to officers with is This not to that studies that mL/kg/min prove always at least a 48 level who had aver- that "more is better” are irrele- (Defen- age App. employer’s arrests of 13.9. See at 3065 vant to validation of an discrimi- 52D); 6) study natory practice. example, dant's Exhibit The For a content vali- exam, average capacity perpetrators typing has dated aas exam for the .such meaning position typist, little unless SEPTA can show that which demonstrates that the perpetrators typically applicants higher arrests of these ae- are who score on the exam will contests; police may performance justify robic because SEPTA are exhibit better a armed, showing unlikely. rank-ordering hiring practice such a that is discrimi- remanding natory. study we Because are for the District In such a a validation light proving may to reconsider this evidence in that "more is better” suffice to standard, true, Griggs hiring. we need not rule on validate the rank-order however, This any prior whether District Court's find- the rarest of cases where the ings represent clearly qualities fairly as to these studies were exam errone- tests for I.

V. inability about its to control Concerned reasons, foregoing it is For the a property, crime on its SEPTA instituted did not to us that the District Court clear problem. attack on the It three-prоnged necessity employ the business standard officers, added a substantial number of incorporated implicit in implemented patrol, a zone method discriminatory that a requires Act which general- adopted improve standards measure the mini cutoff score be shown to ly condition of its officers. poor physical necessary mum for success qualifications police many metropolitan depart- Unlike job in performance question ful ments, deployed alone SEPTA officers disparate impact chal order to survive foot, engaging physical and on activities the judg We will therefore vacate lenge. frequently more than other law enforce- remand ment of the District Court and agencies. ment appeal for the District Court to deter var- patrol present significant The zones whether has carried its bur mine SEPTA physi- iations in conditions that affect the its 1.5 mile run establishing den of cal of officers in the exertion the minimum aerobic measures One, example, their duties. Zone successfully steps a climb of 30 to 50 from street has Because of SEPTA transit officer.2'1 Three, level. Zone a mixture of above and this is the first occasion we have had to locations, below-ground large borders clarify necessity the Act’s business stan mall, shopping featuring retail theft and dard, may on remand the District Court pursuits that lead into the SEPTA transit to allow the wish to exercise its discretion Five, system. sports Zone which includes parties develop further the record complexes, long is characterized dis- with the standard announced keeping in- tances between stations. Zone Six area, here. Temple University cludes the scene frequent against crimes students. WEIS, Judge, dissenting: Circuit occasionally officers must ask “minimum qualifications” criterion for assistance from their comrades other justification apply of business does not to calls into zones. Thеse are divided two types employment. public all When of categories, “officer assists” and “officer stake, safety a lighter burden is backups.” requires An “assist” officers to justify hiring to their placed employers respond immediately. only Often the I requirements. Because believe that the get quick- available to scene method case, applies ly latter standard this I run An eight city is a of five to blocks. an responding pre- would affirm. officer “assist” must responsibilities. totality job’s rejected a It is District Court as irrelevant unlikely study validate rank- plaintiffs’ such could evidence incumbent offi hiring discriminatory with a based physical yet cers had failed the fitness test upon physical complex jobs attributes in such successfully performed and that other police qualities as that of officer in which function well without an aerobic forces intelligence, judgment, experh such as and Lanning, capacity admission test. See 1998 surely play espe- ence a critical role. This is WL 341605 at *68-*70. Under the standard cially true in SEPTA’s where the record implicit incorporated into the patrol that SEPTA officers encoun- indicates Act, evidence that SEPTA’s tends to show assists,” “running ter the most strenuous task capacity cutoff score for aerobic does not testing upon capacity which SEPTA’s aerobic qualifications correlate with the minimum predominately justified, average at an perform successfully per year. Compare rate of twice Lan- Accordingly, SEPTA officer. this evi transit ning, (finding 1998 WL 341605 at *5 by relevant and be considered dence is should approximately running SEPTAhas assists the District Court on remand. per year) (noting *27 with id. at that SEPTA officers). patrol has 190 effectively enough energy significant serve to deal correlation between aerobic ca- arriving on the pacity with a situation once scene. and the by number of made arrests averages running as- Furthermore, SEPTA about individual SEPTA officers. per year. “Backups” are' not as criti- commendations, sists 96% went to offi- “assists,” generally cal as so officers use an average capacity cers with of 46 mL. Of 1,920 jog.” averages about “paced awards, arrests, these 198 involved “backups” annually. pursuit, 116 involved a foot use of force or physical- other study exertion. Another help attaining goals,

For its fitness perpetra- indicated that 51.9% offense Davis, Dr. Paul SEPTA turned to an ac- a capacity higher, tors had of 48 mL or knowledged in the expert field who had with only having 27% lower than a 42 mL recommended corrective measures for nu- rating. government merous law enforcement and agencies. began At the time Dr. Davis his The record that a demonstrates smaller SEPTA, equip-

research officer’s percentage applicants passed female pounds; ment load was 12 it: nearly is now males, running test than nearly but that all pounds. Dr. Davis found that officers women who trained for it were able to “sound, intact, need cardiovas- diseaseTfree pass. plaintiffs The named and some of cular systemfs]” effectively perform the class members who failed demonstrat- jobs. requirements implicate their These ed, for part, the most a “cavalier” attitude ie., capacity, ability aerobic running towards test. Videotapes body oxygen during to utilize sustained applicants showed some of these walking physical running, activities such as swim- at the halfway point, they either because n ming, cycling. capacity Aerobic were indifferent or unable to run for even commonly measured in units of milliliters Thus, a period short of time. al- oxygen per kilogram body weight per óf though there was a significant disparity “mL/kg/min,” or “mL.” minute' — between pass-fail rates of male and run typically jog SEPTA officers on a applicants, female the extent of the differ- daily eight city basis from three to blocks appears exaggerated ence to have been periods They of three to ten minutes. approach some extent taken engage climbing, also in stair which re- some of the applicants. quires a of mL. capacity light of this Ransdell, Lynda A Dr. physiologist, tes- evidence, and other Dr. Davis concluded starting tified that 40% of all women at an that SEPTA transit officers need an aero- mL train capácity 35 to 37 can bic of mL. determining After weeks, pass running in eight test that such a level would have “draconian” and that 10% of all women 20 and between however, effect on Dr. applicants, female years age any 29 of can do without so Davis lowered his recommendation to 42.5 that training. average She concluded capacity mL. That could be demonstrated sedentary woman can achieve SEPTA’s minutes, by running miles in 12 a 1.5 test only standard with moderate that adopted applicants. was for a training. applicants SEPTA sent letter study Dr. had done a for a Davis similar outlining training recommended tech- Paul, Minnesota, department fire St. niques that Dr. Ransdell testified were a mL— setting which—in standard of 45 adequate. required applicants to run 1.5 in 11 miles Eighty percent minutes and 40 seconds. of testimony Plaintiffs introduced the applicants ap- of male and 76% of female klcArdle, Dr. suggested William who plicants passed this test. all use of-a “relative fitness” test which to meet the testimony, applicants required In addition Dr. would be Davis’ their presented percentile capacity also evidence from oth- 50th of aerobic for SEPTA males, 42 mL experts statistically gender approximately er a for demonstrate — However, a dis- employment practice that causes Dr. lar for females. and 36 mL of ... ... Moffatt, who con- on the basis sex expert parate a defense Robert neces- capacity respondent of the aerobic and the fails to demonstrate tests ducted duties, a officer’s sary perform challenged practice related officers stated that female disagreed. question He and consistent position for the be able 36 mL would not capacity with a of necessity!.]” business U.S.C. with after run- 2000e-2(k)(l)(A). their duties capably § Dr. “backup.” a ning to an “assist” or passed This addition to Title VII was Siskin, expert, another defense Bernard Supreme Court’s decision response rate for females found that the arrest Co., Atonio, Packing Inc. v. Wards Cove significantly lower a mL L.Ed.2d capacity. 42 mL males with a than that of held rejected Dr. McAr- The District Court prima a makes a facie plaintiff that after it would not serve proposal dle’s because impact, the defendant showing disparate a goal providing po- business SEPTA’s produce evidence of bears the burden physi- performing capable lice force justification. See id. at business nearly as well requirements of the cal persuasion, 2115. The burden of Instead, existing the court as the test. however, at all times with the remains study, standing that “Dr. Davis’ found showing plaintiff. See id. As to what alone, professional met the standards satisfy justification, would and satisfies defen- construct validation dispositive held that “the issue is demonstrating job relat- dant’s burden of serves, in challenged practice whether necessity.” More- edness and business way, significant legitimate employment over, study empirical had sufficient his However, Id. goals employer.” capacity require- for an support chal requirement “there is no 42.5 mL. ment of ‘indispens be ‘essential’ or lenged practice business for it to employer’s

able’ to the Id. pass muster.” II. Congress members of were dis- Some dispute

The in this case centers on the with the result in Wards Cove and pleased justifica- applicable standard argued a stricter standard of business Rights Act of 1991. tion under the Civil justification reading pre- based on their I, 105(a), 102-166, § Pub.L. No. Title See years cases. After two Wards Cove (adding 1074-75 42 U.S.C. 105 Stat. struggle, Congress and the legislative 2000e-2(k)). pertinent pro- The section upon a bill. agreed compromise President practice “An vides: unlawful ambiguous language Whether disparate impact based on established accomplished purpose has party ... dem- statute complaining [the] if— subject lively particu- uses a debate.1 respondent onstrates that been Above?, 43 Case W. Res. L.Rev. 1. In addition to the law review commentaries Of Alito, by Rosemary majority, ("business see also (1993) cited necessity” has the same 349 Impact Disparate Under the Discrimination "serves, meaning phrase as the Wards Cove Act, 1011, Rights Rutgers Civil 45 L.Rev. 1991 Comment, way”); Lye, significant Linda a (1993) requiring proof ("Only cases 1033 ... Tangled Tale: The Erosion and Con- Title VII’s job-relatedness of and a reasonable need for Impact Disparate and the Business fusion of Necessity Defense, challenged practice with both accord[ ] the the Berkeley Employment J. statutory language of Act and the the 1991 315, (1998) (a challenged prac- & Lab. L. applicable Supreme precedent.”); Court predictor be a "reasonable of effec- tice must Browne, Rights Kingsley R. The Civil Act Of duties,” job performance tive of defined "Quota Bill," A 1991: A Codification Of Cove, goals”). light "important Griggs, of A Partial Return To Wards Or All bill, by The 1990 which had been vetoed little to clear the air language because the President,2 phrase had used the “re- opinions those has caused confusion.3 quired by necessity,” rather than problem The can ultimately be traced back necessity,” “consistent with business as Griggs to itself. In that in- which used in the 1991 Act. The substitution of jobs, volved power-plant the Court held the word “consistent” was considered to high that a completion school requirement stringent indicate a standard. less than general intelligence tests that dispro- would In that “required.” light, fair portionately disqualified black apрlicants reading challenged the 1991 Act is “the were not significantly job related. The practice is related for the position Court said: “The touchstone is business question harmony and in with business necessity.” 431, Griggs, 401 U.S. necessity.” However, S.Ct. 849. very next sen- It may fairly be said that language reads, tence an employment “[i]f practice ultimately adopted in the 1991 Act reflects ... cannot be shown to be related to an “agreement disagree” to and a return performance, practice prohibited.” is dispute to the courts for resolution. Thus, Id. speaks the Court of both “neces- short, veto-proof unable to muster a sity” “job-relatedness” in the same view, majority Congress either “punt breath. ed.” This conclusion is underscored Congress’ highly unusual admonition that In the following paragraph, we read the courts consider “in designated neither employment requirement terpretive legislative memorandum” as his “shown to bear a demonstrable relation- tory, than rather the more elaborate com ship to successful jobs reports mittee and other materials for which it was used. Both adopted were customarily reveal the extent of the con ... meaningful study without of their rela- troversy between various views. See tionship job-performance to ability.” Id. 102-166, I, 105(b), § Pub.L. No. Title 105 The Court also refers “testing meeha- interpretive Stat. 1075. The memorandum measuring job nisms[that are] unrelated to states that: “The terms ‘business necessi tests,” capability,” “job-related and states ‘job ty’ and related’ are intended to reflect “any given requirement must have a concepts Supreme enunciated relationship manifest Co., in Griggs Court v. Duke Power 432-34, 436, question.” Id. at 91 S.Ct. 849. 424, 91 S.Ct. 28 L.Ed.2d 158 opinion repeat Not once does the or ex- (1971), and in Supreme the other Court pound upon necessity.” “business Un- prior Packing decisions Cove Wards Co. ’ “job-relatedness” questionably, Griggs Atonio, 2115, 104 dominant thread. (1989).” L.Ed.2d 733 Cong. Rec. 1991). (daily S15276 ed. Oct. The also citеd with approval Court for- Congress’ reference to the line of mer EEOC Guideline 29 C.F.R. decisions, however, 1607.4(c), Supreme does required employers which to' Alexander, quota hiring Rights The fear of was behind the L. the Civil Defeat of sign President's refusal the bill. See Statement earlier versions of Wading Through Act 1990: the Rhetoric In George President Compromise, 44 Search Vand. L.Rev. 595 Upon Signing reprinted Bush S. in 1991 (stating pro- U.S.C.C.A.N. 768 that the Act discrimination, goals ridding motes al- Bayer, 3. See Peter Brandon Mutable Charac- hire, lowing employers on the “basis of teristics and the Discrimination Definition of ability merit and without the fear of unwar- VII, Under Title 20 U.C. Davis L.Rev. litigation,” leading quotas ranted without (1987) ("Both Supreme & n. 213 litigation). or incentives for needless discussion of the For a rulings confusing and lower court offer drafting Rights of the Civil see, Larson, patchwork seemingly conflicting Employment Act stan- 2 Lex K. (2d ed.1999). dards.”). Discrimination For 23.04[1] ' bill, analysis rejected Cynthia 1990 see 498 VII, “demonstrating brought that the test the suit was not under Title

produce data significantly Griggs of or correlated the Court discussed and Albemarle. predictive judge elements of work behavior The district had concluded “that a important comprise ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​‌‌​‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​‍positive relationship which or are relevant to between the test and jobs being for which candidates are training-course performance was sufficient 9, the[test], Id. at 433 n. 91 S.Ct. 849. wholly evaluated.” to validate aside from its possible relationship actual concept next visited the The Court 250, as a officer.” Id. at 96 police S.Ct. justification Paper in Albemarle Significantly, Supreme 2040. 405, 2362, Moody, v. 422 U.S. 95 S.Ct. Co. remarked that such a conclusion was not (1975), mill paper 45 L.Ed.2d 280 where foreclosed either or Albemarle using screening dispa- tests that had a was and “it seems to us the much more sensi- applicants. rate on black The is- job-relatedness ble construction of the re- sue, Court, according was whether 250-51, quirement.” Id. at 96 S.Ct. 2040. employer had shown the tests tо be test, Dismissing challenges to the 408, “job related.” Id. at 95 S.Ct. 2362. minimum Court remarked that “some ver- employer’s The Court concluded very and communicative bal skill would be study was defective because it validation useful, essential, if satisfactory not of, analysis “involved no of the attributes progress training regimen.” Id. at in, particular or the skills needed the stud- 250, 96 2040. S.Ct. 432, at 95 groups.” ied Id. S.Ct. 2362. hiring also critical of deci-

The Court was Rawlinson, In another Dothard v. subjective opinions sions based on the 321, 2720, 97 433 U.S. S.Ct. 53 L.Ed.2d 786 432-33, id. at 95 supervisors. See S.Ct. (1977), height the Court held that 2362. requirements weight prison guards ruling could not stand. The was on portion of Albemarle most relevant based employer’s produce any failure to evi- to the case at hand focused on whether dence to correlate those standards with capability tests that take into account requisite strength thought if “the amount of promotion may long- be utilized such good job performance.” fulfill essential to Id. at range requirements “genuine busi- 331, footnote, 434, 97 2720. In a Dothard ness need.” Id. at 95 S.Ct. 2362. The S.Ct. ’ repeated Griggs statement employer’s study “[t]he validation focused on the necessity,” touchstone is business and fur- by job groups top scores achieved near the discriminatory employ- ther stated that “a progression. of the various lines of .The practice ment must be to be neces- Court observed that those results did “not shown test, sary job performance necessarily mean that to safe and efficient or some test, challenge.” to survive Title VII Id. at particular cutoff score on the is a 14, 332 n. 97 Earlier in permissible measure of the minimal S.Ct. 2720. quali- body opinion, explained entering fications of new workers lower 434, jobs.” employer Id. at that the must show that a re- level 95 S.Ct. 2362. “ Thus, ‘a study faulty quirement relationship the validation has manifest be- ” employment Id. at question.’ there had “no clear showing cause been (quoting Giiggs, 401 validation was not S.Ct. differential feasible 849). jobs.” for lower level Id. at S.Ct. S.Ct. context, In yet upheld another the Court

The Court next appropriate employer’s prohibition considered Davis, methadone, Washington criteria in v. despite 426 U.S. to users of claims of (1976), disparate impact Hispanics. 48 L.Ed.2d blacks and which allegedly City Authority involved written tests that See New York Transit Beazer, 568, 587, a discriminatory impact appli- had on black Court, positions. Although cants for officer L.Ed.2d 587 To the rule, in employer’s appli- My study narcotics éven its of the standard for business users, justification “job as set forth cation to methadone relat- the Civil Act Rights of 1991 convinces me that it ed.” Id. remains essentially the same as it inwas quoted Beazer the District Court’s ob- pr However, e-Wards Cove era. other [ie., goals safety servation that “those and than holding its on burden proof, it does by— efficiency] significantly are served not seem that Wards Cove was a revolu- even, if they require employ- do not [the— tionary pronouncement. Until the Su- applies rule as it to all methadone er’s] preme subject, Court reexamines the how- including seeking users those who are emr ever, with, courts will continue struggle to ployment non-safety-sensitive posi- in the often phraseology inconsistent em- n. tions.” Id. at 587 99 S.Ct. 1355. The ployed in Griggs progeny. and its Supreme Court concluded that rec- “[t]he definition and application of the appropri- employ- ord thus demonstrates that [the ate justification standard for business will relationship rule bears a er’s] ‘manifest depend on the context which it is raised. ” employment question.’ (quot- Id. There significant factual differences 849). ing Griggs, 401 U.S. S.Ct. extent, the cases that explain, to some the differing formulations. Albemarle and The Beazer most observed Griggs applied greater scrutiny when the positions affected were “attended disparate impact entry affected to lower- per- unusual hazards and be must jobs, level it where is fair to assume that by ‘pеrsons formed maximum alertness ” special no qualifications would generally be competence.’ and Id. at. expected. positions were “critical” Other sensitive,” “safety many and involved contrast, In Beazer and Washington “danger employees] pub- [the or to the important raised an additional consider- lic.” Id. public safety. Beazer concerned ation — jobs involving dangers serious to employ- ees passengers. as well as to transit

III. Washington, a written demonstrating test applicant’s ability an complete police preceding pr As the sketch of e-Wards job-related, officer training was even apart demonstrates, opinions Cove Supreme from relationship performance to actual appropriate Court’s articulations of the as a public officer. The standards are far from clear. Phrases safety employee qualifications concerns on necessity,”' such as “business “demonstra- inescapable, and serves to differentiate ble relationship to successful lower-level, positions those from nonsafe- job,” relationship “manifest ty-sensitive ones.4 question,” “genuine busi- needs,” ness good and ‘‘essential, The Courts of have Appeals explicitly performance,”' have been used inter- recognized safety the relevance of consid changeably. varying These formulations erations in a beginning series decisions observation, bring to mind Justice Holmes’ Airlines, Inc., Spurlock v. United crystal, (10th Cir.1972). “A word is not a transparent and F.2d 216 In that unchanged, living it is the skin of a required airline that applicants flight thought may vary greatly color and positions college degree officer have a content according'to the circumstances and minimum flight of 500 hours. The Court, the time in which it is used.” Towne citing Griggs, held that where “the Eisner, 418, 425, job clearly requires high degree of skill (1918). L.Ed. 372 in- economic and human risks Spiropoulos, Defining Impаct Finding 4. See Andrew C. Cause Action: the Golden Mean, Necessity Disparate Business N.C. L.Rev. 1479 Defense 500 Trust, v. Fort Worth Bank & 487 U.S. hiring unqualified applicant in an son

volved (1988) 977, 2777, a corre- employer the bears 108 S.Ct. 101 L.Ed.2d 827 great, are his em- lighter burden to show spondingly (plurality op.), objecting to what he consid job related.” Id. at criteria are ployment tendency the em ered be to weaken Because, pilots, in the case of “[t]he 219. burden, favorably, cited Davis ployer’s hiring unqualified ap- in an risks involved stating proper means of estab “[t]he .... courts plicant staggering [t]he are necessity vary will lishing business with proceed great ... with caution be- should in type ques the and size of the business an to lower his requiring employer fore tion, job” in particular ques as well as the job.” for such pre-employment standards (Black 1007, at 2777. tion. Id. 108 S.Ct. Id. mun, J., concurring in and part concurring judgment)5 in the case, v. leading City Another Davis of (5th Cir.1985), Dallas, ap 777 F.2d 205 post-Wards involving In a case Cove to criteria for plied Spurlock doctrine Appeals of for the firefighters, Court City hiring police required officers. The “safety that such Eleventh Circuit noted education, college amount of no specific City claims would afford the an affirmative history marijuana usage, of and a recent defense, protecting employees from history negative of traffic violations. De that, workplace goal hazards is a as a spite findings disparate impact, of law, of to qualify matter has been found as upheld requirements. Having Court important goal for Title VII many following Spur- reviewed the cases Atlanta, City v. purposes.” Fitzpatrick of lock, difficulty ... the Court had “no (11th Cir.1993) 1112, 2 F.3d 1119 (citing equating position police of officer in a Beazer, 31, at n. 440 U.S. 587 & major metropolitan area such as Dallas 1355; Dothard, at 331 n. 433 U.S. 97 jobs with other that courts have found to 2720). Thus, “[m]easures 5.Ct. demon- interest important public involve the strably necessary meeting goal of (internal safety.” quotation Id. at 215 ensuring safety worker аre therefore omitted). public marks degree risk ‘required by deemed to be neces- responsibility and alone “would warrant sity’ under Title VII.” Id. examination relatedness ... requirement light education under the In Appeals a similar the Court of imposed Spurlock er standard under and Eighth for the wrote that law Circuit “the progeny.” Id. at 215. require city put does not lives [plaintiff] firefighters at his fellow risk

Observing positions the nature of the by taking duty the chance that he is fit for Albemarle, Davis issue not- when solid scientific studies indicate that Supreme ed that neither case did the with similar to are persons test results his jobs suggest those “were note- Moines, not.” City Smith v. Des 99 worthy for dangerousness impor- their (8th Cir.1996). F.3d 1473 Other public tance to the welfare.” Id. at 210. contrast, Appeals have reached similar under consid- Courts involving safety-sensi- conclusions in directly implicated public eration Davis cases drivers, safety positions 211. It tive such truck bus concerns. See id. at as Blackmun, drivers, interesting firefighters, Justice Wat- officers.6 Usery Tours, 5. In the analogous approval context of the defense of v. Tamiami Trail Inc., (5th Cir.1976)). occupational qualification, bona fide preme Su 531 F.2d " greater 'The has stated: See, e.g., Telephone Yorkv. American & Tele factor, safety by the measured likelihood of Co., 948, 952, (10th graph 95 F.3d Cir. probable severity harm and the of that harm 1996) accident, operating (powerhouse engineers); stringent may in case of an the more ” Cleveland, City v. F.2d job qualifications... Zamlen be the .’ Western Air Cir.1990) Lines, 400, 413, (6th Criswell, City (firefighters); Hamer Inc. v. Atlanta, (11th Cir.1989) (1985) (quoting 872 F.2d 86 L.Ed.2d 321 IV. though their failure percentages were sub- stantially lower. separate parties The issues thát complain Plaintiffs that SEPTA cannot straightforward. Plaintiffs do not serious- point any instances a perpetrator where ly the fact that contest of a away, crime or an got offense was predictor a valid perfor- efficient committed because of an officer’s lack of mance a police They as transit officer. do capacity. aerobic But as by noted Fitz- challenge not the that for finding running patrick, “[t]he mere absence of unfortu- way 1.5 is an miles effective measure nate incidents is not preclude sufficient” to capacity. aerobic Nor apparently they do particular safety requirement because suggest that 42.5 mL an is inappropriate otherwise, such “measures could be insti- cut-off for male applicants: they implicitly tuted only once accidents had occurred accept by advancing this standard Dr. rather than in order to avert accidents.” test, McArdle’s alternative which would Fitzpatrick, at 2 F.3d 1120-21. use that score for males and a lower one Here, where applicants have it within for females. power their prepare running government plaintiff Even the concedes test, they may properly expected be to do that an employer may improve work- its. so. In important view of the public safety (citing force. U.S. Br. at 35 Griggs, 401 issue, concerns at it is not unreasonable to 431, 849).7 turn, U.S. at 91 Griggs, S.Ct. expect all applicants or male—to —female stressed tests “must measure the per- take the necessary steps in quali- order to son for the person and not the in the fy for the positions. 436, Griggs, abstract.” 401 U.S. 91 at The District Court’s conclusions must-be running S.Ct. 849. SEPTA’s attempts test appraised against background. The that, just i.e., to do improve the caliber of trial was lengthy and the evidence exten- by selecting its force new hires to fit sive. The findings of fact on needs appropriately heightened performance respect are not standards. clearly erroneous. This conclusion is man- A appraisal plaintiffs’ objec- fair of the by dated that clear standard error tion is that running test’s cut-off re- when, evidence, exists on the entire quires applicants femalе to run than faster definite, court is left with the firm convic- majority of women can run without train- tion that a mistake has been committed. However, ing. nearly all of the women See City City, v. Bessemer Anderson who train were pass 564, 573, did able to the test. 1504, 84 Also, not all males were al- pass, able L.Ed.2d 518 If the account Lines, Inc., (firefighters); ployees....” Levin v. Delta Air Cong. (April Rec. 7246-47 994, (5th 1984) 8, 730 attendants); (flight 1964) F.2d 997-98 Cir. (interpretive memorandum of Sen. Complete Chrisner v. Tran Auto Case). Clark and Case stated Senators sit, Inc., 1251, (6th 645 F.2d Cir. 1261-63 may qualifications the “employer set his as 1981) (truck yard employees); v. Harriss Pan high (April as he likes....” Id. at 7213 Inc., Airways, American World F.2d 1964) (interpretive memorandum of Sens. (9th Cir.1980) attendants); (flight Case). Humphrey Clark and stated Senator. Forks, City v. Grand McCosh 628 F.2d Government, employer, not the "[t]he (8th Cir.1980) (police); Boyd v. will the standards.” Id. at 13088 establish Lines, Inc., (8th Air 568 F.2d Ozark Thus, (June 1964). legislative history 1977) (airline Alito, pilots); supra, Cir. see also “clearly Congress of Title VII reveals that & n. 100. 1033-35 preserving employer concerned free about dom, employer it acted to mandate interesting legislative 7. It history is that in the VII, with as little intrusion into the color-blindness original congressional of the text of Title enterprise system possible.” free argued as Contreras advocatés that "title VII Would not require, City Angeles, and no court could read VII as 656 F.2d title Los (9th 1981). requiring, employer change to lower or Cir. occupational qualifications he sets his em- with the criteria used light disagreeing “plausible District Court Court, majority District holds that entirety,” may we not record viewed discriminatory impermis- “a that had cutoff score if we ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​‌‌​‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​‍are convinced reverse even fact, the mini- trier of sible unless shown to measure sitting [we] as the we “been qualifications different- mum for success- weighed the evidence would have job in 574,105 question.” ful ly.” Id. at presented by The difficulties this standard Moreover, per- there are two “[w]here Dr. testimony are illustrated evidence, factfin- missible views of McArdle, expert. In es- plaintiffs’ сannot be clear- der’s choice between them sence, proposed applicants he that female Id. “This is so even when ly erroneous.” to meet of their aerobic expected be 50% ... are based findings court’s the district mL, but that capacity, translating to 36 documentary evi- physical instead on at the of 42.5 males continue 50% level facts.” Id. dence or inferences from other would, course, That have mL. standard credibility findings are based on Where women, but accord- impact less adverse on determinations, appellate review accords Court, ing findings to the of the District findings deference to the greater even would also have a detrimental id. at the District Court. See the SEPTA transit the effectiveness of routinely hold that S.Ct. 1504. Courts police. clear justification is reviewed for See, Davis, mind, agree 777 F.2d at 208 & this in I cannot that e.g., error. With 1; I majority’s n. 475 F.2d at 219-20. the standard is the correct one Spurlock, therefore, mL accept, ap- Reducing that 42.5 is this case. standards towards position particu- the of a SEPTA the lowest common denominator is propriate level for officer, reasonable, larly and that it for a inappropriate that it is force. Un- doubtedly, running fit candidates who fail the physically attainable otherwise fe- training. may with moderate test—female or have other applicants male male— SEPTA, qualities particular value to but then, question is whether SEPTA’s they possess requisite must permissible standard is under the terms as well. No matter how laudable capacity Rights Act of 1991 and the the Civil discrimination, job it is to reduce precedents. relevant The District Court goal by lowering important achieve this rejected that plaintiffs’ contention safety an unac- public presents standards necessity” under the statute is “business ceptable risk. governed by a footnote Dothard that discriminatory capacity objective, Aerobic is an measur- employment states: “[A] necessary gauges ability must be to be able factor which of a practice shown job performance....” being perform physical activity. safe and efficient human Dothard, sys- at n. the human 97 S.Ct. The aerobic demands on Rather, looking Griggs 2720. and Beaz- tem are affected such as the absolutes er, traveled, speed, the Distinct Court stated that SEPTA distance the number of climbed, only “significantly steps need show that its tests to be and similar factors. serve, required by agency pronouncements but are neither nor Governmental will distances, to, employer’s legitimate not shorten reduce the number words, steps, capacity or decrease the aerobic business interests” —in other relationship” perpetrators it a manifest to match the reduced stan- '“bears officers, dards of male or female.8 Some question. mL, Although government plaintiff bic of 45 to 48 and recommends agencies up Depart- dispute, I would one of to 50. See United States note that some Service, Agriculture, take a different on the issue of ment of Forest Technol- somewhat tack Service, ogy Development Program, The U.S. Forest & Fitness aerobic fitness. instance, (2d ed.1997). Capacity Notably, that requires firefighters an aero- Work to have males and more females cannot meet the Although manee. the District Court re- necessary requirements. Based on the jected plaintiffs’ argument trial, facts established those individuals footnote, Beazer, Dothard rather than sup- cannot simply efficiently. standard, plied the proper the factual find- cannot, they To the extent that their hire ings make it clear that under either for- adversely public affects safety. mulation, the District Court reached the

The current Uniform on Em Guidelines correct result. Procedures, ployee Selection 29 C.F.R. The Dothard footnote states that (“EEOC Guidelinеs”), § 1607 not as challenged practice must be “necessary to suggested by strict as the standard safe and performance.” efficient Do- scores, majority. discussing cut-off thard, at 331 n. 97 S.Ct. 2720. explicitly “they Guidelines state Court, footnote, The District also normally be set so as to should be reason wrote “physical fitness is one trait or able consistent with expecta normal ability officers, required of acceptable tions of it proficiency within the [but] 1607.5(H) work force.” 29 C.F.R. is a trait or ability is necessary for (1998). Further, the EEOC Guidelines and critical to the successful “predictive of or significantly job, thus SEPTA should be able standard — correlated with important elements”—has to test for such a trait.” This finding more by Supreme been cited the Court than complies with by Dothard’s footnote approval on several occasions. See Albe concluding only that not physical is fitness marle, 431, 422 at (quot U.S. 95 S.Ct. 2362 “necessary” job to safe and per- efficient 1607.4(c)); ing § 29 Griggs, former C.F.R. officers, formance as SEPTA but that it is 9, 401 n. U.S. at 433 91 S.Ct. 849 (quoting “critical” to successful performance of 1607.5(B) same); see also 29 C.F.R. Moreover, jobs. these the finding clearly even meets the criterion that cut-off scores Further, Albemarle’s to “min- reference “measure the minimum qualifications nec- qualifications” imal directed n performance of the essary for successful the inappropriateness using a test added). job.” (emphasis geared higher-level jobs towards as any Nor can there be doubt that entry-level for the positions. screen See Albe- ’ marle, 434, findings satisfy factual U.S. at here re- This holding, which is minimally quirement relevant necessity.” “business Un- hand, at doubly the matter is inapplica- questionably, job-related SEPTA’s test is ble the public safety. when affects See and there can be no doubt that physical Davis, 777 F.2d at 211 n. 5.9 fitness, and particularly capacity, necessary adequate performance

I no need to see remand this case District of a transit Court. Whatever officer. The standard is used, findings require of fact an affir- findings convincing are that mL 42.5 ais Health, agency currently Physical Activity uses a 1.5 mile run test. See all. See (viewed and Adults 7, 1999) id. 50-51. May at hup:// www.cdc.gov/nccdphp/sgr/ adults.htm>. Also, Physical the Presidential Fitness Award is available to children meet the who plaintiffs suggest 9. The also that SEPTA’svali- percentile by meeting target 85th of fitness However, dation were studies insufficient. levels events such as a run. one-mile See compliance strict with the EEOC 1998). Guidelines Qualifying (updated Standards Oct. Beazer, is not in all cases. See http://www.indiana.edu/# preschal/quali- Al# 1355; Washington, U.S. at 587 99 S.Ct. n. fying.html>. 250-51, 426 U.S. at 96 S.Ct. 2040. In cases The Centers For Disease and Control Pre- involving public safety, courts have held

vention lament that more than of U.S. that 60% engage empirical required. do not in the adults recommended validation not See activity, Boyd, amount active at 25% not 568 F.2d at 54. judgment affirm determining explicitly do so point for cut-off reasonable Here, supplies that basis.10 the record ability necessary for success- physical safety concerns re- job. Consequently, ample evidence about of the performance ful offi- reading lated to the of SEPTA plaintiffs’ even under these, as courts should Act, relies so much on Do- cers. cases such which thard, lower standards in an effort to in favor of the defen- decline to judgment goal disparate impact reduce when that be affirmed. dant should expense public safety. at comes mind, the correct standard for my To deference should be afforded to Due Spurloch-Davis, that of one this case is employers in set- experience specialized safety on the places greater emphasis requirements safety- ting appropriate I have no public and fellow officers. positions. sensitive line of cases survives the doubt Rights Act of because those Civil V. Congress’ “interpre- notеd in

opinions—as concepts tive memorandum” —“reflect Lanning appellants propose a num- Supreme decisions enunciated” they sug- practices ber of alternative Watson, 487 U.S. prior to Wards Cove.See gest disparate would have lesser 2777; Beazer, at at 108 S.Ct. First, serving goals. while still SEPTA’s 1355; Washington, 587 n. 99 S.Ct. they medically suggest SEPTA select Smith, 2040; at 99 F.3d applicants pass require- fit who fitness 1473; Fitzpatrick, at F.3d at 1119. Safe- of their training ments at the end ty clearly “concepts” concerns are consid- Second, Academy. Police Philadelphia as applied Supreme ered earlier, they argue in favor noted various factual circumstances (ie., relative fitness test one with a lower post- in and Appeals, pre Courts of both females). Third, point they cut-off Nothing legisla- Cove in the Wards cases. an prompt propose SEPTA alternative. history any tive on the contin- casts doubt viability opinions. ued of these plaintiffs satisfactory For to establish a alternative, they must the demon- “make[ ] Spurloch-Davis, it Although did not cite § in 2000e- [42 stration described U.S.C. the District stated in its conclusions Court 2(k)(l)(C) respect with to an alternative ] “employers of law that such as SEPTA employment practice [establish that] be the effi- encouraged improve should adopt refuses to such alter- the[employer] workforce, ciency especially where employment practice.” U.S.C. native public safety implicated by particu- is 2000e-2(k)(l)(A)(ii). To meet this bur- lar as it with SEPTA.” More em- den, alternatives plaintiffs’ proposed it that sim- phatically, “[t]he stated disparate impact have and “also must less ply readily will not condone dilution of employer’s legitimate serve the interest physical obtainable abilities standards ” trustworthy workmanship.’ ‘efficient and protect public safety serve to order Albemarle, 425, 2362; 95 S.Ct. candidates, they are to allow unfit whether Ctr., Inc., v. Medical see also NAACP female, male or transit become SEPTA (3d (en Cir.1981) 1322, n. F.2d police officers.” banc). Watson, As stated the alterna- equally infer- tive test must “be as effective as Although the District Court entially challenged practice serving I the em- applied Spurlock-Davis, would (3d Cir.1983) may & n. 1 order of the be F.2d 1144-45 An District 10. Gowran, grounds (citing Helvering affirmed on alternative where v. judgment supported by (1937)). the record below. 82 L.Ed. 224 Collieries, Inc., Lady See Guthrie v. Jane Lowenschuss, individually Fred legitimate goals.” Wat- ployer’s as son, 998,108 Lowenschuss, I.R.A., 2777. 487 U.S. at Trustee of Fred Lowenschuss, I.R.A., Laurance that none The District Court found Fred Lowenschuss Associates Pension plaintiffs’ proposals served SEPTA’s Plan, legitimate having physi- interest more may If cally fit work force. re- 42.5 mL quire an aerobic after International, Inc., Resorts Sun Interna academy, training plaintiffs at the as America, Inc., tional North which was it propose, practice is unclear how that formerly Gaming known as Griffin & any discriminatory

would be less than re- Entertainment, Inc., which was for short, plan it hire. quiring before merly known as Resorts Internation simply require training would be on al, Inc., Appellant. than on that “company time” rather applicants. No. 98-6037. proposed As to the relative fitness test United Court of Appeals, States plaintiffs’ expert, the factual find- Third Circuit.

ings demonstrate that officers with a ca- pacity of 36 mL do not serve SEPTA’s Argued Jan. 1999. required needs ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​‌‌​‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​‍as well as standard Filed June 42.5 mL.11 Finally, proposal forward SEPTA come alternative Thus, plaintiffs

is not an alternative at all.

have failed to meet their burden to estab- employment practice.

lish an alternative

I would affirm the judgment Dis-

trict Gourt. INTERNATIONAL,

In re: RESORTS

INC., Financing Resorts International

Inc., Inc., Griffin Resorts and Griffin Hold, Inc.,

Resorts Debtors. Rights presents By plain language, 11. The Civil Act of 1991 sex[.]” an- U.S.C. potential 2000e-2(Z) other barrier to the relative fitness arguably prohibits a fit- relative 2000e-2(Z) prohibits test. Subsection "in ness test. The District Court concluded that connection with applicants selection or referral of provision apply. did not I have some ... candidates for ruling, but not reach that doubt on need to ... use different ... em- cutoff scores for issue because I would affirm on other bases. ployment related tests ... basis of

Case Details

Case Name: Lanning v. Southeastern Pennsylvania Transportation Authority

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 29, 1999

Citation: 181 F.3d 478

Docket Number: 98-1644, 98-1755

Court Abbreviation: 3rd Cir.