Thursday, July 31, 2014

DOJ Sues PA State Police for Fitness Test

The United States Department of Justice (DOJ) filed a lawsuit on Tuesday against the Pennsylvania State Police. You can read the Complaint here.

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.