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19 are most likely to relate to Title VII of the Civil Rights prior referral, a pattern or practice of discrimination is Act of 1964153 and the ADA.154 involved.159 This section discusses legal requirements under Title VII defines an employee as "an individual em- these federal statutes--as well as related state re- ployed by an employer."160 Courts have construed the quirements--that place limits on physical ability test- term "employee" under the Act in the context of "the ing, including prohibitions against employment dis- conventional master-servant relationship as understood crimination based on gender, disability, and age, as well by common-law agency doctrine."161 Thus, whether an as medical leave requirements. (Discrimination based individual who does not receive a salary may nonethe- on race, while obviously unlawful, is rarely an issue in less be an employee for Title VII purposes based on job- physical ability testing cases.) Search and seizure pro- related benefits is a question of fact.162 tections are also addressed. This subsection briefly reviews the difference be- tween intentional discrimination and disparate impact A. Title VII discrimination. Subsection A then discusses the estab- Title VII prohibits employment practices that dis- lishment and evolution of the disparate impact doctrine, criminate based on race, color, religion, sex, or national including the business necessity defense. Finally, the origin.155 Those requirements apply to state and local subsection addresses EEOC guidelines on test selection governments that have 15 or more employees or receive criteria, including validation. federal funding and all private employers with more than 15 employees.156 The Civil Rights Act of 1991157 1. Intentional Discrimination v. Disparate Impact amended Title VII, clarifying the burden of proof under Intentional discrimination involves taking action to disparate impact cases,158 among other changes. The avoid selecting or promoting persons in protected U.S. Department of Justice (DOJ) and the EEOC share classes, for example, by imposing different require- enforcement responsibility of Title VII, with DOJ hav- ments on such applicants or employees than on other ing the responsibility to file a civil action against a state applicants or employees. Absent direct evidence of an or local governmental agency, either where the EEOC intent to discriminate, a pattern or practice of inten- has found reasonable cause but has not been able to tional discrimination may be shown by proving regular reach a conciliation agreement or where, even absent and purposeful discrimination by a preponderance of the evidence. Such discrimination clearly violates the Civil Rights Act. Where, for example, male and female job applicants both receive raw test scores that meet requirements, but female applicants are scored as fail- 153 88 Pub. L. No. 352, 78 Stat. 241, tit. VII, July 2, 1964, ing, a finding of intentional discrimination is sup- codified as 42 U.S.C. 2000e. ported.163 In addition, an employment policy that treats 154 ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note members of a protected class differently than members 109, at 94. of another class on its face, such as an employment pol- 155 42 U.S.C. 2000e-2, http://frwebgate.access.gpo.gov/cgi- icy that is explicitly gender based, amounts to disparate bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc42.pt1.wa treatment. Such a policy can only be defended where is&start=26948980&SIZE=17763&TYPE=PDF. States may the gender-based practice is a bona fide occupational provide protection to a greater number of classes than tit. VII. 164 qualification (BFOQ), that is, where sex is an occupa- E.g., IOWA CODE 216.6 Unfair Employment Practices, tional qualification reasonably necessary to the normal prohibiting employment discrimination based on "age, race, creed, color, sex, sexual orientation, gender identity, national 159 origin, religion, or disability...unless based upon the nature of U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' the occupation," http://coolice.legis.state.ia.us/Cool-ICE/default MANUAL, Employment Litigation Section--Affirmative Suits .asp?category=billinfo&service=IowaCode&ga=83. However, for Under Title VII, 8-2.211, purposes of physical ability testing it seems unlikely that www.usdoj.gov/usao/eousa/foia_reading_room/usam/title8/2mcv classes other than those protected by federal law would be at r.htm#8-2.211. 160 issue. 42 U.S.C. 2000e(f). 161 156 42 U.S.C. 2000e, Definitions, Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 http://frwebgate.access.gpo.gov/cgi- 23, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581, 589 (1992). 162 bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc42.pt1.wa E.g., Haavistola v. Cmty. Fire Co., 6 F.3d 211, 22122 is&start=26860359&SIZE=84934&TYPE=PDF. The Equal (4th Cir. 1993) (reasonable fact finder could decide Title VII Employment Opportunity Act of 1972, 92 Pub. L. No. 261, 86 employment relationship existed where volunteer firefighter Stat. 103 extended the requirements of tit. VII to state and received benefits such as disability pension, survivors' benefits, local governments. Those requirements include the disparate group life insurance, and scholarships for dependents upon impact doctrine. Blake v. City of L.A., 595 F.2d 1367, 1374 (9th death); Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468, 472 (2d Cir. 1979). Cir. 1999) (probationary firefighter receiving benefits more 157 102 Pub. L. No. 166, 105 Stat. 1071, tit. I, Nov. 21, 1991, generous than those in Haavistola could reasonably be held to codified in various sections of 42 U.S.C. 2000e-2 et seq. be employee under Title VII). 163 158 CIVIL RIGHTS DIV., U.S. DEP'T OF JUSTICE, TITLE VI E.E.O.C .v. Dial Corp., 469 F.3d 735 (8th Cir. 2006). 164 LEGAL MANUAL, at n.39, www.usdoj.gov/crt?cor/coord/vim Frank v. United Airlines, Inc., 216 F.3d 845, 85354 (9th anual.php. Cir. 2000).

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20 operation of the business or enterprise that offers the employment practice to be lawful, the employers must defense.165 show the business necessity of the practice. The precise Where a plaintiff alleges intentional discrimination requirements of meeting that standard have been the but lacks direct evidence of discriminatory purpose, subject of much litigation and commentary. courts generally apply the evidentiary framework of Employers who change employment practices to McDonnell Douglas Corp. v. Green166 and Texas Dep't of avoid having them result in adverse impacts may face Community Affairs v. Burdine,167 referred to as the "reverse discrimination actions"; employees who bene- McDonnell Douglas-Burdine burden-shifting frame- fited from those practices may allege that they have work. The plaintiff establishes a prima facie case by been discriminated against. The Supreme Court has showing that he is a member of a protected class, he now held that when an employer uses a test whose re- was qualified for the job, he suffered an adverse em- sults have a disparate impact on a protected class, the ployment decision, and he was replaced by a person employer may not attempt to remedy that result by outside the protected class or treated differently than discriminating against employees not in the protected similarly situated nonprotected employees.168 The em- class unless there is a strong basis-in-evidence that the ployer must then articulate a legitimate, nondiscrimi- employer would otherwise have been liable under the natory reason for the adverse employment decision. If federal disparate impact statute.171 such evidence is proffered, the employee may yet pre- The Second Circuit has held that individual supervi- vail by showing that the proffered explanation is a pre- sors are not personally liable under Title VII.172 How- text for discrimination.169 ever, the First Circuit has held that employers who As discussed below, the Supreme Court has also held mask intentional discrimination by purporting to rely that an employment practice that has a disparate im- on preemployment screening tests may face personal pact on a protected class--that is, adversely affects liability. For example, the First Circuit upheld a district members of that class far more than it affects other court's monetary sanctions against a New Hampshire employees--may be unlawful even without a discrimi- mayor who had claimed that physical ability tests were 170 natory intent on the part of the employer. For such an used to determine hiring for the town's fire department, when in fact the defendants made hiring decisions 165 based on undisclosed subjective criteria.173 42 U.S.C. 2000e2(e). The BFOQ cannot be based on stereotyped characterizations of the sexes. See 29 C.F.R. 2. Disparate Impact Analysis: Supreme Court 1604.2(a)(1)(ii). Rather, in order to establish a sex-based BFOQ, the employer must have a "basis in fact" for believing A series of Supreme Court cases from the early that no members of one sex could perform the job in question. 1970s through the late 1980s established the doctrine of Dothard v. Rawlinson, 433 U.S. 321, 335 (1977). State law may unlawful disparate impact, which is particularly rele- allow an employer to apply to the relevant state agency, such vant for physical ability tests.174 Although these cases as a Human Rights Commission, for a certification that a provided somewhat inconclusive guidance on the re- physical qualification is a bona fide occupational qualification. quirements for defending against a charge of disparate E.g., R.I.G.L. 28-5-7(4), impact discrimination, they nonetheless delineate the www.rilin.state.ri.us/statutes/title28/28-5/28-5-7.HTM. Under overall legal framework for analyzing disparate impact Rhode Island law such a request would be evaluated after a cases. public hearing. Response to report questionnaire from Cynthia 175 Hyatt, Legal Counsel, State of Rhode Island Commission for Griggs v. Duke Power Co. --Griggs is the seminal Human Rights, June 15, 2009. Absent such a certification, the disparate impact case. Chief Justice Burger delivered question of the validity of a physical qualification is likely to be determined on a case-by-case basis, decided if and when a per- 171 Ricci v. DeStefano, 557 U.S. ____, 129 S. Ct. 2658, 174 L. son with a disability or another member of a protected class Ed. 2d 490 (2009). filed a complaint alleging that the requirement for a particular 172 Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. physical ability is discriminatory. 2003). 166 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 173 Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997). 167 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 174 Typically there are significant strength differences be- 168 White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th tween men and women. DEBORAH L. GEBHARDT, ESTABLISHING Cir. 2008). PERFORMANCE STANDARDS (Ch. 6, Stefan Constable & Barbara 169 Id. Palmer, eds., The Process of Physical Fitness Standards Devel- 170 An employment practice that has a disparate impact on opment, 2000), www.dtic.mil/cgi-bin/GetTR eligibility for employment or promotion may not be defended on Doc?AD=ADA495349&Location=U2&doc=GetTRDoc.pdf the grounds that it has no effect on bottom-line employment or (accessed Oct. 27, 2009). Due to these typical disparities, promotion because of affirmative action. Connecticut v. Teal, strength and stamina tests tend to have disparate impact on 457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982). "Thus, women. Michael E. Brooks, Law Enforcement Physical Fitness under Teal and its progeny, individual components of a hiring Standards and Title VII, THE FBI LAW ENFORCEMENT process may constitute separate and independent employment BULLETIN, May 2001, at 26, 29, www.fbi.gov/publications/leb/ practices subject to Title VII even if the overall decision- /2001/may01leb.pdf (accessed Nov. 29, 2008). See, e.g., Evans v. making process does not disparately impact the ultimate em- City of Evanston, 881 F.2d 382, 384 (7th Cir. 1989); EEOC v. ployment decisions involving a protected group." Bradley v. Dial, 469 F.3d 735 (8th Cir. 2006). 175 City of Lynn, 443 F. Supp. 2d 145, 15859 (D. Mass. 2006). 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

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21 the court's unanimous decision. The employer in that without question the EEOC's interpretation was Griggs, which before the passage of the Civil Rights Act consistent with congressional intent. The Court held of 1964 had routinely discriminated overtly against that employment tests or measuring procedures may blacks in employment, had instituted a requirement for not control employment decisions unless "they are de- either a high school diploma or passing an intelligence monstrably a reasonable measure of job performance."179 test and a general aptitude test for employees to be While clearly establishing a claim for discrimination hired into its higher-paying departments or to transfer based on disparate impact, Griggs did not make clear from the lowest-paying department into those higher- what showing was required to establish a defense of paying departments. Neither test measured aptitude for business necessity and what was required to show that a particular job or category of jobs. White employees an employment practice met the business necessity who were hired before those requirements were in place standard.180 nonetheless performed satisfactorily. The lower courts Takeaway: Employment practice with discriminatory had found that absent a showing of discriminatory in- effect is prohibited unless the practice bears a demon- tent, there was no violation of the Civil Rights Act. strable relationship to successful performance of the job In reviewing the purpose of the Civil Rights Act, the covered by the practice. Court stated that Congress intended to require "the Albemarle Paper Co. v. Moody181.--In Albemarle, the removal of artificial, arbitrary, and unnecessary barri- Court examined the question of whether the employer ers to employment when the barriers operate invidi- had met the burden of showing that its employment ously to discriminate on the basis of racial or other im- tests were job related. The employer, a paper mill, insti- permissible classification." Thus employment tests or tuted two intelligence tests to screen employees for en- criteria must offer genuine opportunity: they must take try into the higher-paying, skilled job lines at its plant. into account applicants' conditions. Accordingly, the Neither test had been validated for job-relatedness at Court found that the Civil Rights Act "proscribes not the plant. Incumbents were not required to pass the only overt discrimination but also practices that are fair tests to retain their jobs or be promoted. A number of in form, but discriminatory in operation. The touch- white incumbents in higher-ranking job groups could stone is business necessity." The Court held that if an not in fact pass the tests. The employer hired an indus- employment practice that excludes members of a pro- trial psychologist to validate the tests before the case tected class "cannot be shown to be related to job per- went to trial. formance, the practice is prohibited."176 The Court reiterated the requirement for establish- The Court then noted that the employment tests had ing a prima facie case of discrimination: showing that been adopted because the company thought they would "the tests in question select applicants for hire or pro- generally improve the quality of the workforce, rather motion in a racial pattern significantly different from than on the basis of study showing that they bore "a that of the pool of applicants."182 The Court then re- demonstrable relationship to successful performance of viewed the question of job-relatedness. The Court noted the jobs" for which they were used. Moreover, employ- that the EEOC guidelines on validation do not have the ees who had not met these requirements performed force of formal regulations, but are entitled to great successfully in the jobs for which they were now re- quired.177 The Court held that Title VII reached the con- 179 Id. at 436. sequences of employment practices, not just the em- 180 Andrew C. Spiropoulos, Defining the Business Necessity ployer's intent, and that under Title VII, employment Defense to the Disparate Impact Cause of Action: Finding the practices that are discriminatory in effect are unlawful Golden Mean, 74 N.C. L. REV. 1479, 148788 (1996). unless the employer meets "the burden of showing that 181 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). any given requirement (has)...a manifest relationship 182 Id. at 425, citing McDonnell Douglas Corp. v. Green, 411 178 to the employment in question." U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). In examining the employer's contention that its gen- McDonnell Douglas established the burden shifting analysis eral intelligence tests were permitted under the section for Title VII claims. The Court held that the plaintiff carries of the Civil Rights Act allowing professionally- the initial burden of establishing a prima facie case of dis- developed ability tests not designed, intended, or used crimination. In the case of racial discrimination, the plaintiff to discriminate based on race, the Court referred to the meets that burden by showing: EEOC's guidelines interpreting that section as only (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking allowing job-related tests. The Court reviewed the legis- applicants; (iii) that, despite his qualifications, he was rejected; lative history of the provision in question and found and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of com- plainant's qualifications. 176 Id. at 431. Id. at 802. The burden then shifts to the employer to articulate 177 Id. at 43132 (1971). The Court did not reach the ques- a legitimate, nondiscriminatory reason for rejecting the plain- tion of whether an employer may adopt testing requirements tiff. The plaintiff in turn must be afforded an opportunity to that take into account the need for advancement if the em- establish that the proffered reason is in fact a pretext for dis- ployer can show a genuine business need for such require- crimination. Id. at 80204. Although McDonnell Douglas in- ments. Id. at 432. volved a claim of intentional discrimination, the burden shift- 178 Id. ing analysis is applied to disparate-impact claims as well.

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22 deference.183 Under those guidelines, as under Griggs, state as employer still bore the burden of showing that discriminatory tests "are impermissible unless shown, the discriminatory employment practice was necessary by professionally acceptable methods, to be `predictive to safe and efficient job performance.186 The Court found of or significantly correlated with important elements of that the state could meet the standards of Title VII by work behavior which comprise or are relevant to the job adopting and validating a test that measures strength or jobs for which candidates are being evaluated.'"184 directly, because such a test would measure the person Using that standard, the Court found Albemarle's vali- for the job, not the person in the abstract. Thus, in dation study to be insufficient. There was insufficient Dothard, the Court rejected the "more is better" justifi- correlation between the tests and successful perform- cation for an employment practice.187 ance in the jobs being studied; the study relied in part Finally the Court addressed the question of whether on subjective supervisory rankings without clear crite- the challenged regulation was permissible on the ria of job performance being relied upon; the study fo- ground that gender was a BFOQ for counselors. The cused on high-level jobs, but used those results for test- Court found that the use of gender to assign counselors ing entry-level positions, without justifying the use of in close contact was not based on stereotypes, but on the high-level measures for the entry-level jobs; and the the real need not to have women put in danger of as- validation study dealt with experienced white workers, sault, as for example from sex offenders scattered but the tests were given to young, inexperienced, and throughout the maximum-security prisons. The Court often nonwhite applicants. noted that the real danger of women counselors being Takeaway: Where test is criterion-related, validating assaulted implicated not just their safety but mainte- predictive value before implementation, using profes- nance of security in the prisons. sionally acceptable methods, is particularly important. Takeaway: Where strength is required to perform an Dothard v. Rawlinson185--Dothard involved a re- essential function of the job, strength should be meas- quirement under Alabama law that correctional coun- ured directly, not through unreliable proxies such as selors meet a 120 lb minimum weight standard and 5 ft height and weight. 188 2 in. minimum height standard (the maximum stan- New York City Transit Authority v. Beazer .-- dards were not at issue in the case), as well as a regula- Beazer involved a challenge to the transit authority's tory requirement establishing gender criteria for as- rule prohibiting the employment of narcotics users, in- signing counselors to maximum security institutions for cluding methadone users. The Court rejected the find- positions with close physical proximity to inmates. The ing of the lower court that the statistics cited estab- Court first determined that it was appropriate to judge lished a prima facie case.189 The Court found that even the prima facie case based on statistics showing that were the statistical evidence valid, it was rebutted by the combined height and weight minimums would ex- the transit authority's showing that the narcotics rule clude 41.13 percent of the female population while ex- was job related. The Court stated in a footnote that the cluding less than 1 percent of the male population. The authority's legitimate employment goals of safety and Court rejected the argument that national statistics, as efficiency required excluding all methadone users from opposed to actual statistics concerning actual applicants safety-sensitive positions and that those goals were for correctional positions in Alabama, were insufficient significantly served by, even if not required, the rule to establish a prima facie case. excluding all methadone users even from non-safety- The Court then turned to the argument that the sensitive positions. The Court concluded that the record height and weight requirements were job related be- demonstrated that the rule bore a "manifest relation- cause of their relationship to strength, some amount of ship to the employment in question," citing Griggs and which was deemed essential to effective job perform- Albemarle. The Court then remarked that the employ- ance. The Court noted, however, that the state failed to ees had not carried their ultimate burden of proving a produce any evidence specifically justifying the statu- tory standards; despite the fact that the height and 186 Dothard, 433 U.S. at 331, 332, n.14 (1977). weight requirements were established by statute, the 187 El v. SEPTA, 479 F.3d 232 (3d Cir. 2007). 188 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979). 183 Albemarle Paper, 422 U.S. at 431. See also EEOC v. Ara- 189 The rejected statistics were that 81 percent of the em- bian Am. Oil Co., 499 U.S. 244, 257, 111 S. Ct. 1227, 1235, 113 ployees referred to the transit authority's medical director were L. Ed. 2d 274, 287 (1991); El v. SEPTA, 479 F.3d 232, 244 (3d black or Hispanic (since there was no breakdown of how many Cir. 2007). The Second Circuit has held that the EEOC Guide- referrals were for methadone use) and 63 percent of the 65 lines are the primary yardstick by which the court measures percent of all New Yorkers receiving methadone maintenance test validation. Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, in public programs were black or Hispanic (since there was no 384 (2d Cir. 2006). showing of the racial breakdown of otherwise qualified appli- 184 Albemarle Paper, 422 U.S. at 432, citing 29 C.F.R. cants and employees participating in public methadone main- 1607.4(c). tenance programs or any information about participants in 185 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). See private programs). The court found that these statistics did not also Blake v. City of L.A., 595 F.2d 1367, 1372 (9th Cir. 1979) show that the percentage of black and Hispanic methadone (holding height requirement for Los Angeles police department users was any higher than the percentage of black and His- not shown to be job related or required by business necessity; panic members of the general population in New York City. Id. validation cannot rely on "what is obvious"). at 58487.

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23 Title VII violation.190 Justice White, dissenting, took the employee maintains the burden of persuasion, matching position that the transit authority had the burden of the plaintiff's burden in disparate treatment cases.196 establishing job-relatedness and that "petitioners have The dissenting Justices took the position that the not come close to showing that the present rule is `de- majority opinion upset the longstanding burdens of monstrably a reasonable measure of job performance. proof in disparate impact cases and rejected the Court's [citing Griggs] No one could reasonably argue petition- own interpretation of Title VII as placing a "weighty" ers have made the kind of showing demanded by Griggs burden of establishing business necessity. In addition, or [Albemarle.]"191 the dissent argued that the majority had redefined the Takeaway: Beazer applies the manifest relationship employee's burden of proof by requiring identification of standard, met by significantly serving safety and effi- the specific employment practices that have produced ciency goals. Since this is the standard used in Wards the disparate impact. Cove, questions exist about the current validity of this Takeaway: Held the burden of proof of business ne- standard. cessity lies with the plaintiff, which holding was over- Wards Cove Packing Co. v. Atonio192--Wards Cove turned by statute; recognized legitimate employment was a 5-4 decision holding that the plaintiff in a dispa- goal standard for meeting business necessity test, a rate impact case has the burden of proof on the issue of standard now in question. whether the disparate impact was caused by the em- ployer's employment practices and whether those em- 3. Civil Rights Act of 1991 ployment practices were justified by business neces- The Civil Rights Act of 1991 (1991 Act) explicitly 193 sity. shifted the burden of proof for the business necessity The Court rejected the lower court's holding of what defense to the defendant.197 As amended, the provision constituted a prima facie case of disparate impact.194 In on unlawful employment practices now provides that a addition, the Court held that merely showing a racial prima facie case of unlawful disparate impact is estab- imbalance in the workforce is not sufficient for estab- lished if the employee shows that the employer uses an lishing a prima facie case. Instead the plaintiff must employment practice that causes a disparate impact show that the application of a specific employment based on protected class status and the employer fails practice has created the imbalance: "Respondents will to show that the practice is "job related for the position also have to demonstrate that the disparity they com- in question and consistent with business necessity."198 plain of is the result of one or more of the employment The 1991 Act specifies that the only legislative history practices that they are attacking here, specifically to be considered in interpreting the new provision is a showing that each challenged practice has a signifi- memorandum that states that "(t)he terms `business cantly disparate impact on employment opportunities necessity' and `job related' are intended to reflect the for whites and nonwhites." 195 concepts enunciated by the Supreme Court in Griggs v. The Court then addressed the standard for meeting Duke Power Co., and in the other Supreme Court deci- the business necessity test, holding that the employer sions prior to Wards Cove Packing Co. v. Atonio." 199 The carries the burden of production on this issue, but the 1991 provision has been interpreted as having been passed to codify the Supreme Court's approach to dispa- rate impact cases as expressed in Griggs.200 This provi- 190 Id. at 587, n.31. sion arguably increased the standard because it re- 191 quires a showing of business necessity instead of merely Id. at 602. 192 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989). 193 The employer was a salmon cannery. The plaintiffs al- 196 leged that the employer's hiring and promotion practices re- The Court stated that "it is generally well established sulted in a workforce in which the higher-paid skilled jobs that...the dispositive issue is whether a challenged practice (noncannery) were predominantly held by white employees and serves, in a significant way, the legitimate employment goals of the lower-paid unskilled jobs (cannery) were predominantly the employer," noting that "there is no requirement that the held by nonwhite employees. In addition, the cannery and non- challenged practice be `essential' or `indispensable' to the em- cannery employees lived in separate dormitories and ate in ployer's business for it to pass muster." Id. at 659 (1989). The separate mess halls. Court stated that any statements in earlier cases such as 194 Dothard should have been understood to mean the burden of The lower court had held that a low percentage of non- production, not persuasion. Id. at 65960. Finally, the Court white workers in noncannery jobs and a high percentage of addressed the issue of alternative employment practices, not- nonwhite workers in the cannery jobs made out a prima facie ing that the employees must establish that any such alterna- case of disparate impact. The Court stated that the comparison tives are equally effective, taking cost or other burdens into should have been between the racial composition of the jobs in account. Id. at 661 (1989). question and the racial composition of the qualified population 197 in the labor market in question, because if the low percentage 42 U.S.C. 2000e-2(k)(1)(A). 198 of nonwhites was due to a lack of qualified candidates, the Id. 199 employer's practices would not be at fault. Otherwise, the E.g., David E. Hollar, Physical Ability Tests and Title Court reasoned, employers would be forced to use quotas to VII, 67 U. CHI. L. REV. 777, 783 (2000), citing 137 CONG. REC. avoid disparate impact challenges. 15276 (Oct. 25, 1991). 195 200 Id. at 657. Id.

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24 significantly serving a legitimate employment goal,201 and the close-approximation-to-job-tasks test.211 The although it can also be argued that it is not clear Third Circuit has articulated the arguably strictest whether those contending a stricter standard was en- standard, the minimum qualifications necessary test.212 acted or those contending a more lenient standard was It has been suggested that this Third Circuit standard enacted are correct.202 The Third Circuit, at least, has is more stringent than the EEOC's means of validation. 213 held that the 1991 Act "abrogated the Wards Cove defi- nition of business necessity."203 To be permissible under Title VII, a discriminatory The 1991 Act also provides that separate passing physical ability test must measure abilities required to scores for subgroups such as females and minorities perform essential functions of the job. To meet this re- may not be used for assessments that affect employ- quirement, the test must be based on a job analysis of ment standing, for example, selection and promotion.204 essential job functions, must test abilities that signifi- This has resulted in some confusion about the permissi- cantly correlate--directly or indirectly--to those re- bility of assessing general physical fitness using percen- quired for successful performance of those job functions, tiles that are adjusted for gender and age. A number of and must accurately test those abilities. A test may be public agencies use the age-and gender-based fitness passfail or used to rank candidates. However, using standards of the Cooper Institute for Aerobic Re- tests for ranking is permissible "only where the test search.205 However, the validity of these standards is scores vary directly with job performance."214 Thus a unclear.206 test with an arbitrary cutoff score unrelated to job needs may be rejected.215 In addition, courts may reject 4. Job Relatedness/Business Necessity Defense for cutoff scores where it can be shown that a lower cutoff Physical Ability Tests: Lower Courts score would reduce the disparate impact while still ef- 216 The Supreme Court has not addressed the standard fectively measuring job qualifications. Tests used as a for evaluating use of physical fitness tests as a screen- ing device for employment purposes.207 Accordingly the when no safety concerns implicated); NAACP v. Town of East standard must be based on the general law of disparate Haven, 70 F.3d 219, 225 (2d Cir. 1995). The Second Circuit has impact, which means that the precise requirement for remarked that "job-relatedness" and "business necessity" are 208 the business necessity defense varies by jurisdiction. interchangeable terms. Gulino v. N.Y. State Educ. Dep't, 460 The standards most widely applied include the manifest F.3d 361, 382 (2d Cir. 2006). The Gulino court, while appar- relationship test,209 the demonstrably necessary test,210 ently still applying the manifest relationship test, held that tests with a disparate impact must be shown to be a reasonable measure of job performance in order to be considered job re- 201 Brooks, supra note 174, at 29. lated. Test validation can be shown by the opinion of experts in 202 Andrew C. Spiropoulos, Defining the Business Necessity the field of test validation, evaluated against clearly estab- Defense to the Disparate Impact Cause of Action: Finding the lished guideposts such as the EEOC Guidelines. Id. at 38384. 210 Golden Mean, 74 N.C. L. REV. 1479, 148788 (1996). Sarno, supra note 208, at 1415, n.47, citing Bew v. City of 203 El v. SEPTA, 479 F.3d 232, 241 (3d Cir. 2007). Chicago, 252 F.3d 891, 894 (7th Cir. 2001); Anderson v. Zubi- 204 42 U.S.C. 2000e-2(l). eta, 180 F.3d 329, 342 (D.C. Cir. 1999); Fitzpatrick v. City of 205 Atlanta, 2 F.3d 1112, 111819 (11th Cir. 1993); Banks v. City E.g., Department of Public Safety, Vermont State Police, of Albany, 953 F. Supp. 28, 35 (N.D.N.Y. 1997). www.dps.state.vt.us/vtsp/process.html. 211 206 Sarno, supra note 208, at 1416, n.48, citing Smith v. City E.g., Hoffman & Associates, Total Fitness for Public of Des Moines, 99 F.3d 1466, 147073 (8th Cir. 1996). Safety, Mar. 6, 2009, at 13, 212 http://post.state.nv.us/Administration/Cat3%20Physical%20 Lanning v. SEPTA, 181 F.3d 478 (3d Cir. 1999). See Readiness%20Standards%20Validation%20Report.pdf III.A.1, Title VII, infra this digest. In applying the minimum (accessed Dec. 1, 2009). See discussion of In re Grievance of qualifications standard, the Third Circuit has also held that a Scott, 172 Vt. 288, 779 A.2d 655 (Vt. 2001) in III.A.6., Gen- discriminatory practice must accurately, if not perfectly, meas- der/Age Norming, infra this digest. ure an applicant's ability to perform essential job functions; the 207 employer may hire the applicant most likely to perform a par- Hollar, supra note 199, at 777, 793. 208 ticular job successfully over applicants less likely to do so. El v. Michael R. Sarno, Issues in the Third Circuit: Employers SEPTA, 479 F.3d 232, 242 (3d Cir. 2007). Who Implement Preemployment Tests To Screen Their Appli- 213 Brooks, supra note 174, at 30. cants, Beware (Or Not?): An Analysis Of Lanning v. Southeast- 214 ern Pennsylvania Transportation Authority and the Business Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir. 1983). 215 Necessity Defense as Applied in Third Circuit Employment Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468 (2d Cir. Discrimination Cases, 48 VILL. L. REV. 1403, 141416 (2003). 1999). The district court held that the requirement that all Hollar, supra note 199, at 777. Hollar's analysis of the ap- firefighter candidates drag a hose 150 ft in less than 4 minutes proaches to the business necessity test, while exhaustive, relies was not job related after finding no rational basis for time se- in part on a significant number of cases that pre-date the 1991 lected. The fire department had timed incumbent firefighters Act, and to that extent do not shed light on the standards since (predominantly male), averaged the scores, and added half a enactment. minute for "leeway." In a footnote the appellate court agreed 209 Sarno, supra note 208, at 1415, n.45, citing Ass'n of Mexi- that there was no evidence that the time selected was job re- can-American Educators v. Cal., 231 F.3d 572, 585 (9th Cir. lated. Id. at 472, n.5. 216 2000); Bullington v. United Air Lines, Inc., 186 F.3d 1301, EEOC v. Simpson Timber Co., 1992 U.S. Dist. LEXIS 1315 n.10 (10th Cir. 1999) (using manifest relationship test 5829, *1011 (W.D. Wash.).

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25 ranking mechanism for promotion may also be subject tions. Based on those reports and one estimating that to scrutiny for disparate impact.217 more than 50 percent of people arrested for serious Two circuit cases dealing with physical ability test- crimes221 between 1991 and 1996 had aerobic capacity ing are particularly relevant: Lanning v. Southeastern above that required to pass the test, the district court Pennsylvania Transportation Authority218 (SEPTA) and found that SEPTA had established the aerobic capacity 219 EEOC v. Dial. Given the weight of these cases, they requirement to be job related and justified by business are discussed here at some length. Also covered is the necessity. The district court also relied on a report that viability of safety as a business justification and the found a significantly smaller decrease in ability to per- plaintiff's rebuttal of a less discriminatory alternative. form physical activity after a 3-minute run among offi- Lanning: The Third Circuit reviewed the question of cers with aerobic capacities slightly above those re- the appropriate legal standard for evaluating an as- quired by the test than the decrease in ability among serted business justification for the cutoff score in a those with a lesser aerobic capacity. screening exam that has been challenged as discrimina- After reviewing the facts as described above, Judge tory in a disparate impact challenge. SEPTA, which at Mansmann reviewed the legal framework for examining the time of the lawsuit employed "an extremely low a Title VII disparate impact claim, focusing almost ex- number of women in its transit police force,"220 had de- clusively on the "business necessity" prong of the job cided to upgrade the physical fitness level of its police related and consistent with business necessity defense, officers and hired an expert physiologist as a consultant as well as the history of the disparate impact doctrine to develop an appropriate physical fitness exam. After and the introduction of the concept of business neces- observing and speaking with SEPTA transit police, in- sity as the touchstone for evaluating disparate impact cluding some experienced officers deemed subject mat- claims. He categorized Wards Cove as departing from ter experts, the consultant determined that running, previous interpretations of the business necessity test. jogging, and walking were important tasks for the po- Judge Mansmann explained that the Civil Rights Act of lice officers. The consultant developed a test that would 1991 was passed to codify the interpretations of busi- require the aerobic capacity that the consultant deemed ness necessity and job related set forth in Griggs and necessary to perform the tasks of a SEPTA transit po- the other Supreme Court cases before Wards Cove, lice officer. The test was that an officer be required to making clear that the employer bears both the burden run 1.5 mi in full gear in 12 minutes, a task that was of production and persuasion in establishing the busi- not required during the course of a SEPTA police offi- ness necessity defense. The court cited the statutory cer's duties. language concerning business necessity, including the The test had a markedly higher rate of failure for statutory directions concerning legislative interpreta- female applicants, and Judge Mansmann, delivering tion of the 1991 Act. the opinion of the Third Circuit, noted that SEPTA con- Judge Mansmann acknowledged that following en- ceded the existence of a disparate impact on female ap- actment "proponents of both a strict test for business plicants. Judge Mansmann also noted that SEPTA be- necessity and a more liberal requirement claimed vic- gan testing incumbent officers, at first disciplining tory in the standard adopted by the Act."222 However, those who failed, and then dropping that approach in given that the Supreme Court had not addressed the favor of providing incentives for passing the test. Al- issue since the passage of the 1991 Civil Rights Act and though significant numbers of incumbent officers failed that the circuit court opinions that had applied the 1991 223 the tests, SEPTA never attempted to determine Act's standards had done so "with little analysis," whether the officers who had failed had negatively af- Judge Mansmann looked to Congress's interpretive fected SEPTA's ability to carry out its mission. More- memorandum, concluding that Congress had distin- over, SEPTA had recognized the achievements of offi- guished between Griggs and Wards Cove and had cers who had failed the test and had never imposed any clearly intended to endorse the Griggs standard, so that negative consequences for a police officer for failing to the Wards Cove standard had not survived enactment perform the physical job requirements. In addition, the of the 1991 Civil Rights Act. one female officer hired despite failing the test has re- The court explained its articulation of the minimum ceived numerous recognitions from SEPTA for her per- qualifications standard as follows: formance. In the context of a hiring exam with a cutoff score shown After the litigation was filed, SEPTA hired statisti- to have a discriminatory effect, the standard that best ef- cians to examine the statistical relationship between fectuates [the mission begun in Griggs] is implicit in the the aerobic capacity of SEPTA's officers and their num- Court's application of the business necessity doctrine to ber of arrests, arrest rates, and number of commenda- the employer in Griggs, i.e., that a discriminatory cutoff score is impermissible unless shown to measure the 217 Bradley v. City of Lynn, 443 F. Supp. 2d 145, 159 (D. Mass. 2006). 221 These crimes accounted for about 10 percent of all re- 218 181 F.3d 478 (3d Cir. 1999), cert. denied, 528 U.S. 1131 ported incidents and 7 percent of all reported arrests. Id. at (2000). 484, n.8. 219 222 469 F.3d 735 (8th Cir. 2006). Id. at 488. 220 223 Lanning, 181 F.3d at 483. Id.

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26 minimum qualifications necessary for successful per- Judge Mansmann found that the district court had formance of the job in question. Only this standard can ef- rejected the Dothard standard as dicta, relying instead fectuate the mission begun by the Court in Griggs; only on language in Beazer, supra, which language Judge by requiring employers to demonstrate that their dis- Mansmann stated was dicta and in any event mirrored criminatory cutoff score measures the minimum qualifi- the Wards Cove approach rejected by the 1991 Act. cations necessary for successful performance of the job in question can we be certain to eliminate the use of exces- Moreover, the appellate court found that the district sive cutoff scores that have a disparate impact on minori- court had erred in relying on the SEPTA consultant's ties as a method of imposing unnecessary barriers to em- expertise and in failing to consider whether the dis- ployment opportunities. 224 puted cutoff in fact reflected the minimum aerobic ca- Having concluded that Griggs and its progeny re- pacity necessary to successfully perform the job in ques- quire a minimum qualifications standard, the court tion.228 The court rejected the "more is better" approach deemed it a foregone conclusion that the 1991 Act, as sole validation for adopting particular cutoff scores, which required conformance with the Griggs standard, suggesting that such an approach is antithetical to the incorporated the minimum qualifications standard in policies underlying Title VII and disparate impact the- its definition of business necessity. ory. Following the district court's rationale, any em- The court also discussed the policies behind the dis- ployer whose jobs entail physical activity could adopt parate impact theory of discrimination, noting that an unnecessarily high cutoff scores on the theory that more employer's job requirements could incorporate stan- is better, thereby eliminating virtually all women using dards based on historically discriminatory biases rather a facially neutral, but effectively discriminatory, crite- than actual job requirements; accordingly, the mini- rion, a result the Third Circuit found to contravene mum qualifications standard is needed to protect Griggs. Therefore, the appellate court vacated the lower against covert discrimination. Accordingly, the court court's judgment and remanded with instructions to held that reconsider, using the appellate court's standard, whether SEPTA had met its burden of establishing that the business necessity standard adopted by the Act must the 1.5-mi test measured the minimum aerobic capacity be interpreted in accordance with the standards articu- for successful job performance by a SEPTA police offi- lated by the Supreme Court in Griggs and its pre-Wards Cove progeny which demand that a discriminatory cutoff cer. In particular, the appellate court noted that plain- score be shown to measure the minimum qualifications tiff's evidence concerning lack of correlation between necessary for the successful performance of the job in the test and minimal job qualifications (that incumbent question in order to survive a disparate impact chal- officers had failed the test but successfully performed 225 lenge. the job and that other police forces do well without this Furthermore, the court specifically rejected the dis- type of test) was in fact relevant and should be consid- sent's argument that Spurlock v. United Airlines, Inc.226 ered by the district court upon remand. precluded applying the minimum qualifications stan- Upon remand the district court held another hearing dard to a safety-related job, taking instead the position and found that SEPTA had met the burden of persua- that since the Supreme Court had not adopted sion as set forth by the Court of Appeals. When that Spurlock, it was excluded by the 1991 Act. In addition, decision was again appealed to the Third Circuit, a dif- the court noted that if SEPTA could show failure to ferent three-judge panel upheld the district court, find- meet a certain aerobic capacity would endanger public ing that SEPTA had established that its aerobic capac- safety, such a requirement would then meet the stan- ity test "measure[d] the minimum qualifications dard the Court of Appeals had articulated. 227 necessary for successful performance as a SEPTA tran- sit police officer and ha[d], thus, justified the conceded 224 disparate impact on female candidates by showing Id. at 489. The court found support in both Albemarle 229 business necessity." and Dothard to reinforce the conclusion that the minimum qualifications standard is implicit in Griggs and central to the mission of eradicating discrimination practiced by applying 228 The district court had relied on a study that the consult- facially neutral but in effect discriminatory employment prac- ant had done for the Anne Arundel County police department; tices: "Taken together, Griggs, Albemarle and Dothard teach however the appellate court found fault with using that study that in order to show the business necessity of a discriminatory to validate the SEPTA cutoff score, in that there was no finding cutoff score an employer must demonstrate that its cutoff that the job descriptions were similar, nor that the Anne measures the minimum qualifications necessary for successful Arundel study measured for qualities relevant to qualities performance of the job in question. Id." 225 significant to SEPTA transit police performance. Lanning, 181 Id. at 490. F.3d at 491, n.18. See also United States v. City of Erie, 411 F. 226 475 F.2d 216 (10th Cir. 1972) (holding lower standard of Supp. 2d 524 (W.D. Pa. 2005). showing job relatedness for safety-related positions). 229 Lanning v. SEPTA, 308 F.3d 286, 288 (3d Cir. 2002) 227 Lanning, 181 F.3d at 491, n.16. Cf,, Zamlen v. City of (Lanning II). The original panel for Lanning II included Judges Cleveland, 906 F.2d 209, 217 (6th Cir. 1990) (Recognizing Mansmann, McKee, and Barry. However, Judge Mansmann Spurlock doctrine, relying on Wards Cove standard for estab- died before the opinion was rendered and the panel was recon- lishing required burden of proof.) The argument that the stituted to include Judge Roth. Since Judge Mansmann au- Spurlock doctrine survived the Civil Rights Act of 1991 is con- thored the opinion in Lanning I and Judge McKee dissented sidered controversial. Andrews & Risher, supra note 31, at 9. from the opinion in Lanning II, it is possible that had Judge

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27 The Third Circuit explained that an employer could Screen (WTS), which required applicants to lift and show that a passing standard reflects the "minimum lower a 35-lb bar between two frames, 30 and 60 in. qualifications necessary" for successful performance by above the floor. Applicants were given 7 minutes to showing that individuals who pass the test are "likely to work at their "own pace" while an occupational thera- be able to do the job" whereas individuals who fail the pist took notes on their performance, documenting how test "will be much less likely to successfully execute many lifts were accomplished. In the 3 years before Dial critical policing tasks."230 In applying that standard to instituted the WTS, women constituted 46 percent of the case at hand, the Third Circuit found that the dis- new hires; that number dropped to 15 percent after the trict court's analysis of SEPTA's justifications was not test was begun. Both overall injuries and strength- clearly erroneous, establishing that what the aerobic related injuries declined after the test was imple- capacity tested was related to a SEPTA police officer's mented, but that trend had begun in 1998 after Dial job performance because studies indicated "that indi- began other measures to reduce injuries.232 viduals who fail the test will be much less likely to suc- The EEOC's expert on industrial organization testi- cessfully execute critical policing tasks."231 The court fied that the WTS was significantly more difficult than emphasized that although the test produced disparate the actual job requirement, as the job required an aver- impacts, women who trained for the test were able to age of 1.25 lifts per minute, with rests between lifts, pass it at higher rates, deeming it reasonable for while test takers performed an average of 6 lifts per SEPTA to expect applicants to make the commitment to minute, with no breaks. In addition, according to the physical fitness before they are hired, rather than after. expert, women's rate of injury had been lower than Takeaway: "More is better" is not a sufficient ration- men's in 2 of the 3 years before WTS was implemented. ale for test cutoff scores. To show business necessity, a Based on his analysis of the written evaluations, more discriminatory test cutoff score should measure the men than women were offered employment even though minimum qualifications necessary for successful per- their evaluations were similar. There was also evidence formance of the job in question. The fact that individu- that the occupational nurse had marked some women als did not pass a preemployment test (failed/test not as failing even though they had completed the test. administered) and yet successfully perform essential Dial's expert on work physiology testified to his opinion functions of the job undercuts the business necessity that the test effectively tested skills representative of defense. the actual job. Dial's industrial and organizational psy- Dial: This case involved a challenge to a strength chologist testified that the WTS measured job require- test used by a meat packing plant, ostensibly instituted ments and the decrease in job injuries could be attrib- to reduce on-the-job injuries. The EEOC alleged that uted to the test. The plant nurse testified that Dial Dial had engaged in intentional discrimination and that knew that WTS was screening out more women, but its its test had an unlawful disparate impact on females, continued use was justified by the decrease in inju- an allegation upheld by both the district and appellate ries.233 courts. The Eighth Circuit found that a reasonable jury Specifically, employees at Dial's sausage packing could have found Dial's pattern of differing treatment of area were required to carry about 35 lb of sausage at a men and women supported an inference of intentional time, lifting and loading the sausage to heights of 30 to discrimination.234 60 in. above the floor. These workers experienced dis- 232 proportionately more injuries than other workers in the EEOC v. Dial, 469 F.3d 735, 739 (8th Cir. 2006). plant. In late 1996, Dial began measures to reduce 233 Id. at 73940. these injuries, including ergonomic job rotation, imple- 234 Id. at 742 (8th Cir. 2006). The court reviewed the stan- menting a team approach, and reducing machine dard for finding a pattern or practice of intentional discrimina- heights. In 2000, Dial began using the Work Tolerance tion: A pattern or practice of intentional sex discrimination must be shown by proving "regular and purposeful" discrimination by Mansmann remained on the panel, Lanning II might not have a preponderance of the evidence, Int'l Brotherhood of Teamsters upheld SEPTA's aerobic test. v. U.S., 431 U.S. 324, 339, 360, 97 S. Ct. 1843, 52 L. Ed. 2d 396 230 Id. at 291. (1977). EEOC must show that more than an isolated act of dis- 231 crimination occurred and that "discrimination was the com- Id. The Court of Appeals noted: pany's standard operating procedure," id., but statistics com- ...the District Court credited a study that evaluated the cor- bined with anecdotal examples of discrimination may establish relation between a successful run time and performance on 12 a pattern or practice of regular, purposeful discrimination. Mor- job standards. The study found that individuals who passed the gan v. United Parcel Service of America, Inc., 380 F.3d 459, run test had a success rate on the job standards ranging from 46364 (8th Cir. 2004). Moreover, discriminatory intent can be 70% to 90%. The success rate of the individuals who failed the inferred from the mere fact of differences in treatment, Team- run test ranged from 5% to 20%. The District Court found that sters, 431 U.S. at 335 n.15. such a low rate of success was unacceptable for employees who Id. at 741. The court noted that the statistical disparity be- are regularly called upon to protect the public. In so doing, the tween the pass rate for men and women far exceeded the stan- District Court implicitly defined "minimum qualifications neces- dard of significance, and yet Dial continued to use the test, sary" as meaning "likely to be able to do the job." arguing that "men and women are not similarly situated and Id. (footnote omitted.) have profound physiological differences." However, men and women had both worked the job before the test was imple-

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28 The court noted that given a prima facie case of dis- period in which the city allowed "shadow beards" did parate impact, the employer must show that the test in not establish that such an accommodation was really question is "related to safe and efficient job performance safe. The court was particularly influenced by the na- and is consistent with business necessity,"235 with the tional standards, which although not binding on the business necessity defense requiring proof that the test city, were nonetheless taken as "a trustworthy bench was related to the job in question and its required skills mark for assessing safety-based business necessity and physical requirements.236 There was no clear error claims"; the court held that the only reasonable infer- in the district court's giving more credibility on the con- ence supported by those standards was that shadow tent validity issue to the EEOC's expert in industrial beards are prohibited under those standards.239 organization concerning the difficulty of the test com- Takeaway: Even if nonbinding, national standards pared with the job than to Dial's physiology expert on may provide benchmarks for assessing safety-based the representative nature of the WTS. The evidence-- business necessity claims. which showed that the decrease in injuries started 2 Less Discriminatory Alternative.240--If an employ- years before the test was implemented and that in that ment test that has disparate impact is in fact job- time women had had lower injury rates than men--did related and consistent with business necessity, it may not require the trial court to find that WTS had caused nonetheless be held unlawful if the plaintiff can show a decrease in injury and therefore was criterion valid. that a less discriminatory--but still effective--test Finally, although the burden of showing the existence could be used. However, the cost or burden of the plain- of a less discriminatory alternative would have fallen to tiff's identified alternative may be taken into account in 241 the EEOC if Dial had established its business necessity determining effectiveness. Less discriminatory alter- test, in this case showing that the other safety meas- natives may apply to the cut-off scores as well as the ures had not caused the decrease in injury was part of test itself. 242 Assuming more than one alternative pre- Dial's burden of establishing the necessity of the WTS. sents itself, the employer is not necessarily required to Takeaway: If an employment practice with disparate adopt the employment practice with the least adverse impact is meant to reduce injuries, the employer should impact.243 be able to validate that effect; if the effect is disputed, proving validity may be part of the employer's business 239 necessity defense; tasks in a preemployment screening Id. at 1121. 240 test should not be more onerous than actual job tasks. If the underlying job task itself may be readily reconfig- Safety justification--The Eleventh Circuit has held ured, the court may find that a less discriminatory alternative that protecting employees from workplace hazards is a exists. For example, the Alaska statute prohibiting unemploy- legitimate business goal sufficient to justify an em- ment discrimination provides that it is unlawful to discrimi- nate in employment when the reasonable demands of the posi- ployment practice that may have disparate impact.237 tion do not require making the distinction. The Alaska Fitzpatrick involved a challenge to the Atlanta Fire Supreme Court construes the exception narrowly, taking the Department's requirement that firefighters be clean- word "demands" to mean "requirements or necessities that are shaven. The plaintiffs argued that the policy had a dis- of an urgent nature." McLean v. State of Alaska, 583 P.2d 867, criminatory disparate impact on African American men, 869 (Alaska 1978). In McLean the court noted that in the case many of whom cannot shave because of a medical condi- of a job that required employees to haul 100-lb bundles of laun- tion. The City of Atlanta defended its rule on safety dry, there was not only no showing that women could not haul grounds: individuals with facial hair could not safely the bundles, but no showing that the laundry could not be wear the firefighter's positive-pressure, self-contained placed in smaller bundles, thereby obviating the problem alto- breathing apparatus (SCBA), as facial hair interferes gether. Id. at 870. 241 with the respirator's seal. In support of its position, the Allen v. City of Chicago, 351 F.3d 306, 312 (7th Cir. city cited three national standards recommending 2003). In the context of arguing that a selection procedure with a higher percentage of merit-based promotions would be as against wearing SCBAs with facial hair contacting the valid as the challenged procedure, the Seventh Circuit held sealing surface of the face piece, those of the American that the plaintiffs were required to show their alternative pro- National Standards Institute, the National Institute for cedure would lead to a workforce substantially equally quali- 238 Occupational Safety and Health, and OSHA. The fied as would the challenged procedure. In addition, the court court rejected the plaintiffs' argument that a 6-year found that the cost or other burdens of the alternative proce- dure should be taken into account in evaluating whether the alternative is an equally valid alternative. Moreover, the court mented, and similarly situated men were hired when women held that a nondiscriminatory history for a type of selection were not. procedure is insufficient to establish that a similar procedure 235 Id. at 742 (8th Cir. 2006), citing Firefighters Inst. for Ra- would be less discriminatory than the challenged procedure. cial Equality v. City of St. Louis, 220 F.3d 898, 904 (8th Cir. Id. at 31317. The Ninth Circuit has also recognized that cost 2000). of the alternative procedure is a legitimate concern. Clady v. 236 Id. at 742, citing Belk v. SW. Bell Tel. Co., 194 F.3d 946, County of L.A., 770 F.2d 1421, 1432 (9th Cir. 1985). 951 (8th Cir. 1999). 242 Jackson, supra note 1, at 2078. 237 Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 243 Clady, 770 F.2d at 1432, citing Guardians Ass'n of the 1993). N.Y. City Police Dep't v. Civil Serv. Comm'n, 630 F.2d 79, 110 238 Id. at 1120. (2d Cir. 1980).

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29 Takeaway: Employers need not sacrifice effective- than one appropriate selection procedures is available-- ness in selecting a less discriminatory method for should adopt the procedure with less adverse impact, measuring ability to perform essential functions of the whenever a validity study is called for the employer job. should include exploration of alternative selection pro- cedures in the study.248 While validation may be consid- 5. EEOC Uniform Guidelines/Test Validation ered good personnel management procedure, it is only Some of the EEOC's most significant guidance is required when a procedure results in adverse impact on contained in the Uniform Guidelines on Employee Se- a protected class.249 Once adverse impact is demon- lection Procedures.244 The guidelines were originally strated, however, the EEOC considers it a violation of adopted in 1978 by the EEOC, Civil Service Commis- the Uniform Guidelines to continue using the procedure sion, Department of Labor, and DOJ to provide employ- without validating it. Professionally accepted means of ers and others with a uniform set of principles for com- validation other than the EEOC Guidelines may be plying with federal law prohibiting employment used to validate tests, providing the studies meet re- practices that discriminate on the basis of race, color, quirements set forth in the Guidelines, such as job simi- religion, sex, and national origin. The EEOC guidelines larity and fairness evidence for criterion-related valid- 250 are perhaps the most widely cited source. ity evidence, but federal enforcement agencies will The EEOC applies the Uniform Guidelines in enforc- give precedence to the EEOC Guidelines.251 ing Title VII, as does the DOJ in exercising its respon- Under the guidelines, adverse impact is a "substan- sibilities under federal law. The Uniform Guidelines tially different rate of selection in hiring, promotion, or apply to procedures used to make a wide range of em- other employment decision which works to the disad- ployment decisions, such as hiring, retention, promo- vantage of members of a race, sex, or ethnic group."252 tion, demotion, transfer, referral, or firing. The guide- The EEOC's rule of thumb for adverse impact is the lines do not have the force of law but indicate the four-fifths rule: if the selection rate for a protected class standards the EEOC applies in enforcing Title VII, is less than 80 percent of the selection rate for the and--as noted in Albemarle, supra--are normally given group with the highest selection rate, the procedure is 245 great deference by reviewing courts. The Uniform Guidelines cover the relationship between the use of selection procedures and discrimination, as well as pro- 248 29 C.F.R. 1607.3, Discrimination defined: Relationship viding standards for test validation. The EEOC has also between use of selection procedures and discrimination, published guidance interpreting and clarifying the http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.3. regulatory guidelines.246 pdf. Under the Uniform Guidelines, an employee selec- 249 29 C.F.R. 1607.1, Statement of purpose, tion procedure that has an adverse impact on a pro- http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.1. tected class will be considered discriminatory unless the pdf. procedure has been validated as consistent with the 250 29 C.F.R. 1607.7, Use of other validity studies, guidelines (except in limited circumstances described in http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.7. the guidelines).247 Since an employer--assuming more pdf. Clady v. County of L.A., 770 F.2d 1421, 1430 (9th Cir. 1985). Two other major sources of validation are the Standards for Educational and Psychological Testing (American Educa- 244 EEOC: 29 C.F.R. pt. 1607 (2009), www.access.gpo.gov/ tional Research Association, American Psychological Associa- nara/cfr/waisidx_09/29cfr1607_09.html; DOJ: 28 C.F.R. tion, and National Council on Measurement in Education, 50.14, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/28cfr 1999) and the Principles for the Validation and Use of Person- 50.14.pdf. nel Selection Procedures (Society for Industrial and Organiza- 245 Albemarle Paper, 422 U.S. at 431 (1975). The Ninth Cir- tional Psychology, 2003) [PRINCIPLES FOR THE VALIDATION AND cuit has held that "while noncompliance [with the Uniform USE OF PERSONNEL SELECTION PROCEDURES, (4th ed. 2003), Guidelines] is not necessarily fatal, it diminishes the probative www.siop.org/_Principles/principles.pdf.]. Richard Jeanneret, value of the defendants' validation study." Ass'n of Mexican- Professional and Technical Authorities and Guidelines, in American Educators v. State of Cal., 195 F.3d 465, 487 (9th EMPLOYMENT DISCRIMINATION LITIGATION: BEHAVIORAL, Cir. 1999), citing Clady v. County of L.A., 770 F.2d 1421, 1430 QUANTITATIVE, AND LEGAL PERSPECTIVES (Frank J. Landy & (9th Cir. 1985) (internal quotations omitted). See also United Eduardo Salas, eds., 2005). Jeanneret includes a comparison of States v. City of Chicago, 573 F.2d 416, 427 (7th Cir. 1978) these two sources of validation and the Uniform Guidelines, (employer's burden of justification heavier if EEOC Guidelines and suggests that the approach in the Uniform Guidelines of not followed). dividing validity into three types is outdated. 246 251 EEOC, Uniform Employee Selection Guidelines Interpre- EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html. www.uniformguidelines.com/questionandanswers.html, Ques- 247 29 C.F.R. 1607.3, Discrimination defined: Relationship tion 40. 252 between use of selection procedures and discrimination, 29 C.F.R. 1607.16.B Definitions: Adverse Impact. See http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.3. Bernard R. Siskin & Joseph Trippi, Statistical Issues in Litiga- pdf; 1607.6, Use of selection procedures that have not been tion, in EMPLOYMENT DISCRIMINATION LITIGATION: validated, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29 BEHAVIORAL, QUANTITATIVE, AND LEGAL PERSPECTIVES (Frank cfr1607.6.pdf. J. Landy & Eduardo Salas, eds., 2005).

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30 deemed to have a disparate impact.253 This rule does not (1) Criterion-related validity--a statistical demonstration have the force of law, but is considered to be a good in- of a relationship between scores on a selection procedure dictor that a procedure likely has an adverse impact. and job performance of a sample of workers. However, statistically significant differences in selec- (2) Content validity--a demonstration that the content of tion rates of less than 20 percent may still result in a selection procedure is representative of important as- unlawful discrimination.254 Conversely, if the number of pects of performance on the job. people selected is very small, there may not be unlawful (3) Construct validity--a demonstration that (a) a selec- discrimination even if the rates would normally trigger tion procedure measures a construct (something believed the four-fifths rule. A factor to consider in this regard is to be an underlying human trait or characteristic, such as whether there is a pattern of selection differences over honesty) and (b) the construct is important for successful time.255 job performance. In determining adverse impact, the EEOC first looks Of these three, criterion-related and content are at the overall selection process and then examines each most relevant for physical ability tests. The appropri- selection procedure within the process. If there is no ateness of validation strategy depends on the type of overall adverse impact, there is generally no reason to selection procedure and job, and technical and adminis- examine individual components of the process.256 Ad- trative feasibility. The EEOC advises that where the verse impact determinations should be made for each following conditions exist, the employer should consider group constituting 2 percent or more of either the em- a criterion-related validation study: a substantial num- ployer's workforce or the workforce in the relevant labor ber of individuals for inclusion in the study, a consider- market.257 able range of performance on the selection and criterion Where a specific selection procedure has been held measures, and reliable and valid measures of job per- not to be job related in similar circumstances, the em- formance either available or capable of being developed. ployer should have evidence of the procedure's validity. Where criterion-based validity studies are conducted, 258 An example is minimum height requirements. the employer should investigate fairness. A procedure is Validation is "the demonstration of the job related- unfair if average results for one group are lower than ness of a selection procedure."259 The Guidelines provide average results for another group, but members of the for three types of validation: criterion-related, content, first group perform as well on the job as members of the and construct.260 The EEOC describes these validation 262 second group. Content validity is appropriate where 261 strategies as follows: work samples or other operational measures of prereq- uisite skills can be developed, but not for skills or abili- 263 ties that are expected to be learned on the job. 253 Criterion-related tests measure skills that estimate 29 C.F.C. 1607.4 Information on impact, or predict critical job duties, behaviors, or outcomes. http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.4. For example, if a job analysis shows that lifting is an pdf. important factor, a selection test that measures 254 See Isabel v. City of Memphis, 404 F.3d 404, 41113 (6th strength (correlated to the type of lifting required) Cir. 2005). would be used. "Predictive validation requires a com- 255 EEOC, Uniform Employee Selection Guidelines Interpre- parison between an applicant's test scores and subse- tation and Clarification (Questions and Answers), quent on-the-job performance as an employee; concur- www.uniformguidelines.com/questionandanswers.html, Ques- rent validation methods correlate the test scores of tion 21. 256 present employees vis-a-vis their present job perform- Id., Question 13. 264 ance." Content tests reflect important elements of the 257 29 C.F.R. 1607.15 Documentation of impact and valid- job, and are often work sample tests. Lifting a 50-lb box ity evidence, would be a content-based test for a job that requires http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.15. pdf. 258 EEOC, Uniform Employee Selection Guidelines Interpre- 262 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- www.uniformguidelines.com/questionandanswers.html, Ques- tion 25. tions 6768. 259 Id., Question 32. 263 Id. Question 51. 29 C.F.R. 1607.14B. Technical stan- 260 Other sources may describe validation somewhat differ- dards for criterion-related validity studies, 14C. Technical ently. For example, the American Psychological Association standards for content validity studies, Standards set forth 5 validation strategies or sources of valid- http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14.p ity evidence and 24 specific validity standards. Jeanneret, su- df. Under certain circumstances there may also be operational pra note 250. advantages to using criterion-valid tests. See Jackson, supra 261 EEOC, Uniform Employee Selection Guidelines Interpre- note 1, at 122. 264 tation and Clarification (Questions and Answers), Vulcan Soc'y of N.Y. City Fire Dep't v. Civil Serv. www.uniformguidelines.com/questionandanswers.html, Ques- Comm'n, 490 F.2d 387, 394 (2d Cir. 1973); Firefighters Inst. for tion 32. See, e.g., United States v. City of Erie, 411 F. Supp. 2d Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 524 (W.D. Penn. 2005). 1977).

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31 lifting 50-lb packages.265 Generally, content-based tests individuals who have lower test scores tend to have should be used as a pass-fail measure rather than rank- lower levels of performance."272 Moreover, even the opin- ing candidates. Content-based tests are the most direct ions of an expert in industrial physiology must be sup- measurement of job performance capability, provided ported by empirical evidence or persuasive analysis to that they in fact measure critical job elements. The Uni- provide validation; expert assumptions are not an ade- form Guidelines provide: quate substitute for a research design study as valida- The closer the content and the context of the selection tion.273 The City of Erie court also found that where a procedure are to work samples or work behaviors, the physical ability test is composed of several components stronger is the basis for showing content validity. As the but timed based on completing the entire test, the test content of the selection procedure less resembles a work should be validated as a single test, not on a component behavior, or the setting and manner of the administration basis. In City of Erie, a police candidate physical ability of the selection procedure less resemble the work situa- test (PAT) included three components--a 220-yd obsta- tion, or the result less resembles a work product, the less cle course, 17 push-ups, and 9 sit-ups--to be completed likely the selection procedure is to be content valid, and 266 within 90 seconds.274 The district court found that be- the greater the need for other evidence of validity. cause these components were not structurally inde- The standards for conducting validity studies are de- pendent, they could not be validated separately. scribed in detail under the Uniform Guidelines.267 Dem- Moreover, the court found that the city did not estab- onstrating a rational relationship between an employ- lish that the passing standard of the PAT reflected the ment procedure and the job in question is not sufficient minimum level of physical ability necessary for success- for purposes of Title VII.268 Cut-off scores must also be ful job performance; rather a review of the standard- validated for a relationship to successful job perform- setting process suggested that the standard had been 269 ance. That is, there must be some evidence supporting set too high. A key factor was the litany of officers who the conclusion that a cut-off score is related to job profi- either failed the test or barely passed it and yet were ciency.270 not shown to be minimally-performing officers. The 271 As illustrated by United States v. City of Erie, tak- court also noted that the fact that substantial numbers ing a casual approach to test design and validation is of successful incumbent officers could not pass the test legally perilous. The City of Erie court found that using suggested that the standard for passing did not corre- incumbent employees to design or validate a test does late to minimum qualifications necessary to successful not meet professionally-established standards. Rather, job performance. Accordingly, the court concluded that criterion-related validity can only be established by the city had failed to demonstrate business necessity. collecting data on test scores and job performance Regardless of the type of validation at issue, the en- measures and performing statistical analyses to show tire validation process may fail where the job analysis is that there is "a relationship between the predictor and deficient. Absent a thorough job analysis, assessment of the criterion such that individuals who have higher test 275 appropriate content is impossible. The Thomas court scores tend to have higher levels of performance and also found that using the physical agility tests in ques- tion to rank candidates was impermissible as the de- 265 James A. Hodgdon & Andrew S. Jackson, Physical Test fendants produced no evidence that a passing score was Evaluation for Job Selection in THE PROCESS OF PHYSICAL valid prediction of successful job performance, let alone FITNESS STANDARDS DEVELOPMENT 14043 (Stefan Constable, that a candidate who scored highly would perform bet- Barbara Palmer eds., 2000), www.dtic.mil/cgi- ter than a candidate who passed with a lower score. bin/GetTRDoc?AD=ADA495349&Location=U2&doc=GetTRDoc Takeaway: Test design and validation must meet .pdf (accessed Oct. 27, 2009). professionally accepted standards, including being 266 29 C.F.R. 1607.14C (4) Standards for demonstrating based on a thorough job analysis and being supported content validity, by objective evidence that shows correlation between http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14. the passing score and successful job performance. The pdf. employer remains legally responsible for test design 267 29 C.F.R. 1607.14, Technical standards for validity and validation. studies, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14. 272 Id. at 558. pdf. 273 Id. at 55859, 56970. 268 Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. 274 Id. at 53253. By the time of the district court decision, Ed. 2d 597 (1976). EEOC, Uniform Employee Selection Guide- the City of Erie had discontinued the PAT and required instead lines Interpretation and Clarification (Questions and Answers), that applicants for entry-level police officer positions be certi- www.uniformguidelines.com/questionandanswers.html, Ques- fied as law enforcement officers by the Commonwealth. That tion 37. certification requires scoring in the 50 percent percentile on an 269 Isabel v. City of Memphis, 404 F.3d 404 (6th Cir. 2005). age and gender-normed physical agility test. Id. at 534, n.8. 270 Thomas v. City of Evanston, 610 F. Supp. 422, 431 (N.D. 275 Thomas v. City of Evanston, 610 F. Supp. 422 (N.D. Ill. Ill. 1985), citing 29 C.F.R. 1607.5(H) [Cutoff scores, 1985) (analysis based on three respondent's answers to seven- http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.5 question survey and observations of graduate student during .pdf]. ride-alongs with police insufficient for thorough job analysis); 271 411 F. Supp. 2d 524 (W.D. Pa. 2005). Legault v. aRusso, 842 F. Supp. 1479, 148889 (D. N.H. 1994).