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Summary judgment granted to class of female correction officer applicants; timed run component of physical fitness test had disparate impact on women

A state’s physical fitness test (PFT) for correction officer applicants, which required a timed 1.5-mile run, violated Title VII because it had a disparate impact on female applicants and was neither job-related nor consistent with business necessity, a federal district court in Connecticut ruled in addressing cross motions for summary judgment on the issue of liability in a Title VII class action case (Easterling v Connecticut Dep’t of Corr, May 5, 2011, Hall, J).

The named plaintiff applied to work as a correction officer with the State of Connecticut Department of Corrections. Following passage of her written exam, she took the department’s required PFT that consisted of four parts: (1) a sit-and-reach test; (2) a one-minute sit-up test; (3) a one-minute push-up test; and (4) a timed 1.5-mile run. A candidate failed the entire test if she failed any single part. However, the minimum standards for candidates varied by gender and age. For example, a female candidate in the 21-29 age range was required to complete a 1.5-mile run in 14 minutes, 49 seconds, while the corresponding standard for a male candidate in the 20-29 age group was 12 minutes, 25 seconds. Those standards were set to the 40th percentile of performance for each age/gender cohort, as calculated by the Cooper Institute.

Over the three administrations of the PFT at issue in the case, 398 women participated in the 1.5-mile run portion of the PFT, and 221 women passed, for a passage rate of 55.5%. For the same three administrations, 1,824 men participated in the 1.5-mile run portion of the PFT, and 1,434 men passed, for a passage rate of 78.6%. Overall, the ratio of the female passage rate to the male passage rate was 70.6%.

Disparate impact on female applicants. Using a statistical method known as the “Fisher’s Exact Test,” the named plaintiff’s statistical expert testified that the administration of the 1.5-mile run component of the test yielded statistically significant gender disparities in outcomes. A statistically significant disparity is a disparity that is so large it could not have occurred by chance and, thus, a statistically significant disparity raises an inference of causation. The plaintiff’s expert estimated that the applicants’ performance varied from a gender neutral result by more than four standard deviations in each of the three administrations of the 1.5-mile run. The court explained that the Second Circuit generally classifies a disparity as statistically significant if the observed disparity exceeds two standard deviations. The defendant’s sole expert on the issue of statistical disparity reviewed the plaintiff’s expert’s statistical analysis and concluded that his calculations were accurate. Thus, the undisputed statistical evidence in the record supported the inference that the 1.5-mile run component of the PFT caused a disparate impact on female applicants.

Relevant population analyzed. Nevertheless, the department argued that the plaintiffs picked the wrong population for its statistical analysis, asserting that the plaintiffs were required to show an adverse impact on all women who took the test, not just the female correction officer applicants. But the court disagreed, noting that ample data existed on the nature of the applicant pool for the correction officer position, and the applicant pool was large enough to determine that the gender disparity in passage rates was not attributable to chance. In addition, the court rejected the department’s assertion that applicants for the positions (at other state agencies) of state police trooper trainee and protective services trainee, who were subject to the same 1.5-mile run, should be included in the statistical analysis. The department did not point to any case law showing that such aggregation was appropriate where the same screening mechanism happens to be used by multiple employers hiring for different jobs. Therefore, the applicant pool for the corrections officer position was the appropriate reference group for disparate impact analysis

Two standards for determining job-relatedness. Even though the test had a disparate impact against women, the department would not be liable under Title VII if it could show that the test was job-related and consistent with business necessity (this evidentiary burden is on the employer). Citing Second Circuit precedent, the court found that the proposition that a hiring practice is job-related if the practice is significantly correlated with elements of work behavior that are relevant to the job (the Significantly Correlated Standard) was the applicable standard. Applying this standard, the court found that the department presented no evidence showing the timed 1.5-mile run to be predictive of who could perform the essential physical functions of the job of a correction officer. All three of the department’s experts on the issue of business necessity admitted that they had not empirically demonstrated that the cut scores used by the department for the 1.5-mile run reliably predicted (i.e. correlated with) an individual’s performance on particular job tasks as a correction officer.

However, given the very limited amount of case law on this issue in the Second Circuit, and the lack of clear guidance from the Supreme Court, the court also applied another test sometimes used by courts known as the Minimum Qualifications Standard, and thereby considered whether the 1.5-mile run measured the minimum qualifications necessary for successful performance as a correction officer. The court found that the department was unable to present evidence that the 1.5-mile run test met the Minimum Qualifications Standard because the department’s cut-off times varied by age and gender. By definition, cut-off times that vary by gender and age cannot represent a measure of the minimum aerobic capacity necessary for successful performance as a correction officer, the court reasoned, stating that only a single cut-off time could meet this standard. Thus, under both standards, no reasonable jury could conclude the cut-off times used by the department for the 1.5-mile run were job-related for the correction officer position and consistent with business necessity.

Alternative employment practice. If an employer meets its burden of establishing that a challenged practice with an adverse impact is job-related and consistent with business necessity, an employee or, as in this case, class of employees, can still prevail under Title VII if the employee(s) can prove that other tests or selection devices, which have less disparate impact and would also serve the employer’s legitimate needs, were available to the employer and that the employer refused to adopt such alternative employment practices. In this case, however, because the department did not show the 1.5-mile run was job-related and consistent with business necessity, the court does not reach the issue of whether the department refused to adopt an alternative employment practice that would serve its legitimate needs.

Accordingly, the court granted the named plaintiff’s motion for summary judgment on the issue of liability and noted it would schedule a status conference to discuss the damages phase of the case.