Court Finds Physical Test In Police Department Is Sex Discrimination

In the early 1990s, the City of Erie, Pennsylvania Police Department adopted a physical agility test as part of its process of hiring new officers. The Test was developed in-house by supervisory personnel who had no background in industrial/organizational psychology, exercise physiology, test development, or test validation. The supervisors who developed the Test strove to make the Test representative of the job functions of Erie police officers.

As it was finally adopted in 1994, the Test required applicants to complete a 220-yard obstacle course. The four obstacles in the course were a six-foot high wall, which applicants were required to climb over; a window opening three feet above the ground, which applicants were required to climb through; a platform two feet off the ground and eight feet long, which applicants were required to crawl under; and a four-foot wall, which applicants were required to climb over.

In addition to the obstacle course, the Test required applicants to perform 17 push-ups and nine sit-ups. All three aspects of the Test were required to be competed within a 90-second period.

Over the years, the City made some adjustments to the Test. For example, in 2000, candidates were given the option of climbing over either a six-foot wooden wall or a six-foot chain link fence, with the option designed to make the Test more fair to women. In 2002, the City decreased the number of push-ups from 17 to 13, with the aim again being that of increasing the number of women who could pass the Test.

Nonetheless, there were significantly disproportionate pass rates for men and women. In 1996, for example, women passed the Test at the rate of 4.3 percent; men passed the Test at the rate of 53.7 percent. Over the entire seven-year period between 1996 and 2002, women passed the Test at the rate of 12.9 percent, while the men passed at the rate of 71 percent.

The federal government brought a lawsuit against the City, alleging that the physical agility test amounted to sex discrimination. The City relied on the testimony of one expert witness, Paul Davis, a Ph.D. who is an exercise physiologist. The government relied on three different expert witnesses, all of whom had similar backgrounds: David Jones, William McArdle, Bernard Siskin (Dr. Siskin focused primarily on statistics).

As the case played out, the Court’s decision focused greatly on its assessment of the witnesses. The Court accepted as credible the testimony of the City’s lay witnesses, most of whom were City police officers who testified about the history of the Test, their own experiences taking the Test, and/or their own personal views about the Test’s relevance. The Court also credited the testimony of three expert witnesses called by the government. However, the Court found that “while Dr. Davis is certainly well qualified to provide opinion testimony in the field of exercise physiology, in this particular case his opinions were not well supported by empirical evidence or persuasive analysis.”

In the end, the Court found that the City was unable to prove that the Test was “job-related” as required by Title VII of the Civil Rights Act. Specifically, the Court found that “the City has not proved the validity of the push-ups or sit-ups component of the Test under the validation strategies generally followed by the employment testing professions or by any of the other methods that the City’s expert claimed could be used to validate a physical test. On the contrary, to the extent that evidence regarding the validity of the push-ups component was presented to the Court, the evidence suggests that the push-ups component is not valid. As to the sit-ups component, there was a complete absence of proof by the City as to its validity.”

The Court was also unconvinced that the Test met Title VII’s second standard – that it be “consistent with business necessity.” In the Court’s view, there was substantial evidence that suggested that the cutoff scores for the Test were likely set too high. As the Court stated, “by the City’s own admission, its expert performed no analysis of the Test passing standard. His bare opinion is insufficient to establish that the passing standard used by the City corresponds to the minimum qualifications necessary for successful performance. While the Court does not question the City’s good faith in conducting the standard-setting exercise, the decisions made by the City in administering that exercise and in choosing the cutoff score for new officer applicants made it probable that the Test passing standard would be set at an inappropriately high level, both because the City used a non-representative sample of 19 volunteers (including a disproportionate number of SWAT team members) and because the City chose to utilize the average scores of the volunteers, all of whom the City admitted were performing their jobs at least adequately, rather than determining the level which distinguished successful from unsuccessful performers.”

The Court concluded its opinion by stressing that it did not question the City’s good faith in developing and utilizing the Test, and acknowledged that the City made “genuine efforts to develop a physical agility test that would be responsive to its needs, all the while limited by budgetary concerns and, at times, by objections raised by the police officers’ union.”

The Court declined to offer specific remedy; instead, it set the issue of the remedy for a separate trial.

United States v. City of Erie, Pennsylvania, 2005 WL 3610687 (W.D.Pa. 2005).

This article appears in the February 2006 issue