By Erin Corcoran, Esq. and Shon K. Worner, Esq.
Published on: Thu 10th Feb, 2022 By: Campbell Durrant, P.C.
In December 2021, a Federal District Court approved a $2.2 million settlement entered into between the Pennsylvania State Police (“PSP”) and the Department of Justice (“DOJ”) in a lawsuit claiming that the PSP’s physical fitness tests for entry-level state troopers discriminated against female candidates in violation of Title VII of the Civil Rights Act of 1964. In the lawsuit, the DOJ claimed that the fitness tests dating back to 2003 had unlawfully screened out female candidates and that alternative tests existed that would not have had a disparate impact on female applicants, while still serving PSP’s interests.
The physical fitness test at issue, which were not gender and age normed, consisted of the following: 300-meter run in 67 seconds; 30 sit-ups in 1 minute; 13 push-ups; 14-inch vertical jump; and 1.5 mile run in 16 minutes and 54 seconds. From 2003-2008, approximately 94% of male candidates passed this test, while only 71% of female candidates passed. A similar test used from 2009-2014 resulted in a passage rate of 98% for male candidates, compared to 72% for female candidates.
Using the four-fifths (or 80%) rule utilized by the EEOC, the DOJ argued that the tests had a disparate impact on women because the female pass rate was less than 80% of the male pass rate. The DOJ claimed that roughly 119 more female candidates would have continued through the selection process, and roughly 45 additional female candidates would have been hired as entry-level state troopers, if female candidates had passed the 2003 and 2009 tests at comparable rates to those of male candidates. The DOJ asserted that the tests were not job-related for the entry-level trooper position or consistent with business necessity, and that alternative available tests would not have resulted in such disparities in passage rates between male and female candidates. Therefore, the DOJ alleged that the tests discriminated against women in violation of Title VII of the Civil Rights Act of 1964.
Under the terms of the settlement agreement, PSP is prohibited from using the 2003 or 2009 physical fitness tests, and instead must implement the gender and age-normed Cooper Physical Fitness Test for entry level candidates. Gender-normed tests use different cutoff scores for male and female applicants for certain tested activities, with the expectation being that male and female applicants will pass at roughly equal rates. For example, 26 push-ups (1 minute rep) for a male in the 18 to 29 age group, versus 13 push-ups (1 minute rep) for a female in the same age group. Notably, the court opinion approving the PSP settlement explicitly approves of the use of gender and age-norming, which means that men and women have differing cut-off scores based upon their age and gender, dispelling what may have been a commonly held belief that the use of differing cut-off scores based on gender and age is a per se violation of Title VII. As the Court stated, the goal is to ensure that the testing process in place imposes an equal burden of compliance on men and women.
In light of the PSP settlement, there are several ways that municipalities can lessen liability in connection with police candidate physical fitness testing. One of these avenues is for municipalities to adopt the test administered by the Municipal Police Officers Education and Training Commission (“MPOETC”), as has been done by many municipalities across the state. This test includes sit-ups, push-ups, a 300-meter run, and a 1.5 mile run, and requires applicants to score no lower than the 30th percentile of the “Cooper Standards” for their gender and age group. The Cooper Institute publishes data showing the percentile rankings of men and women across age groups for various physical fitness measures, such as push-ups, sit-ups, and vertical jumps.
Municipalities may also commission a “validation study” to either confirm that their physical fitness tests are job-related, or to develop a new test that can demonstrate an individual’s ability to perform the physical demands required of police officers. This would involve hiring an outside expert to define specific physical job-related standards for the agency. Keep in mind that unless a test has been “validated,” it will be presumed discriminatory if it is determined to have an adverse impact on hiring, promotion, or other employment opportunities. There are other options available to lessen liability, however, there is no one approach that eliminates all potential liability inherent with these tests.
In light of the PSP and DOJ settlement, municipalities should examine whether their police candidate physical fitness test should be updated. The attorneys at Campbell Durrant are available to assist with questions regarding gender and age normalizing of police candidate physical fitness tests in compliance with federal and state non-discrimination laws.
Takeaways:
• Police candidate physical fitness tests should be appropriately normed for gender and age.
• Under the terms of a settlement agreement between the Pennsylvania State Police (“PSP”), the PSP must implement the gender and age-normed Cooper Physical Fitness Test for entry level candidates.
• Gender-normed tests use different cutoff scores for male and female applicants, such that male and female applicants would be expected to pass at roughly equal rates.
• Municipalities may want to consider adopting the physical fitness test administered by the Municipal Police Officers Education and Training Commission (“MPOETC”), which requires applicants to score no lower than the 30th percentile of the “Cooper Standards” for their gender and age group.
• Municipalities may also commission an outside expert to conduct a “validation study” to confirm that their physical fitness tests are job-related and non-discriminatory or to develop a new test.
Bottom Line:
The recent settlement between the Pennsylvania State Police and the Department of Justice suggests that physical fitness tests that have a disparate impact on female candidates pose a significant liability. Municipalities should review their physical fitness tests and consult with labor counsel to revise these tests so that they comply with federal and state non-discrimination law.
