The police use a fitness test as part of their hiring process. The actual test is not clear from the Complaint, but apparently includes a 300-meter run, sit-ups, push-ups, vertical jump, 1.5-mile run, and "new elements" added in 2009. DOJ alleges that since 2009, 98% of male applicants have passed the fitness test but only 72% of female applicants passed. Thus, the test has a statistically significant disparate impact.
Disparate impact does not require discriminatory animus. In other words, DOJ does not have to establish that the Police are intentionally excluding women. Here's the fly-over view of disparate impact analysis:
Under Title VII's disparate impact theory of liability, plaintiffs establish a prima facie case of disparate impact by demonstrating that application of a facially neutral standard has resulted in a significantly discriminatory hiring pattern. Once the plaintiffs have established a prima facie case, the burden shifts to the employer to show that the employment practice is “job related for the position in question and consistent with business necessity....” 42 U.S.C. § 2000e–2(k). Should the employer meet this burden, the plaintiffs may still prevail if they can show that an alternative employment practice has a less disparate impact and would also serve the employer's legitimate business interest.
Lanning v. Se. Pennsylvania Transp. Auth. (SEPTA), 181 F.3d 478, 485 (3d Cir. 1999).I suspect the police can establish a need for some physical fitness requirements. However, DOJ alleges alternatives to the current test exist that "have less disparate impact on women and would serve [their] legitimate interests."
HT: My McQuaide Blasko colleague, Jaime Bumbarger.