For many years, we have been warning that age/gender-graded physical fitness tests are on extremely shaky legal footing from the perspective of Title VII of the Civil Rights Act. For the first time, a court has squarely analyzed the issue, and has found that age/gender-graded tests cannot be “job-related and consistent with business necessity” as required by Title VII.
The case involved a lawsuit filed by Cherie Easterling against the State of Connecticut. Easterling applied to work as a corrections officer with the State, and challenged the use of a timed 1.5-mile run as part of the hiring process. The State used passing levels derived from norms developed by the Cooper Institute in Texas, with the passing time for each age and gender combination as:
On three occasions when the 1.5-mile test was administered, women passed the test at a substantially lower percentage than men. In 2004, 93 of 148 women, or 62.8%, passed the test; 82.0% of men passed the test. In June 2006, 58.7% of female applicants passed the test, while 83.5% of male applicants did so. In October 2006, 34.6% of female applicants passed a make-up test while 53.1% of male applicants did. Overall, the ratio of the female passage rate to the male passage rate was 70.6%.
There was considerable statistical power in these results. A statistics expert estimated that the probability of the gender difference observed for the 2004 administration of the 1.5-mile run occurring by chance was less than one in 1.5 million, or 4.9 standard deviations. The June 2006 test produced even worse results, with the probability of the gender difference occurring by chance less than one in 145 billion, or 6 standard deviations.
The key question for the Court was whether the cutoff scores used for the 1.5-mile run tested for “the minimum qualifications necessary for successful performance of the job in question.” The Court found that, almost by definition, age and gender-graded standards could not test for minimum job skills:
“The parties agree that the 1.5-mile run is a test that measures an individual’s aerobic capacity. The DOC cannot plausibly argue that a time of 12:25 for 21 to 29-year-old men is a valid predictor of the aerobic capacity minimally necessary for successful completion of the tasks of a Correction Officer, if the DOC also permitted 21 to 29-year-old women to complete the 1.5 mile run in 14:49, and 50-year-old women to complete the 1.5-mile run in 17:14. By definition, cutoff times that vary by gender and age cannot represent a measure of the minimum aerobic capacity necessary for successful performance as a Correction Officer. Only a single cutoff time could meet this standard.”
Important in the Court’s analysis was that even the Cooper Institute itself recommended against the use of its age/gender-graded norms as hiring standards: “The DOC purports to rely on the Cooper Institute’s labeling of performance at the 40th percentile as ‘fair’ rather than ‘poor.’ However, the Cooper Institute specifically warns its consumers not to use percentile rankings as hiring standards. The Cooper Institute states that ‘percentile scores (whether age and gender norms or single norms) have no validity data for predicting who can and who cannot do the job.’ Moreover, the EEOC Uniform Guidelines on Employee Selection Procedures ‘specifically rules out’ assumptions of validity based on ‘descriptive labels’ – here, the arbitrary designation of the 40th percentile as ‘fair’ by the Cooper Institute. The Cooper Institute states that ‘using percentile rankings of the Cooper norms for standards is not defensible’ because the ‘percentile rankings do not predict the ability to do the job and do not demonstrate criterion validity.’”
The Court noted that had the DOC used a single cutoff time for the 1.5-mile run, a showing of “business necessity might have been possible.” Citing a 2002 case involving the police department for the Southeastern Pennsylvania Transportation Authority, where officers were required to engage in foot chases of occasionally-fleet suspects, the Court commented on a study that “found that individuals who passed the run test had a success rate on critical policing tasks that ranged from 70% to 90%, whereas individuals who failed the run test had a success rate between 5% and 20%. Such a low rate of success was unacceptable for employees who are regularly called upon to protect the public.”
The Court concluded by criticizing the employer for not developing a test that correlated performance on the test with performance on the job: “All three of DOC’s experts on the issue of business necessity admit that they have not empirically demonstrated that a Corrections Officer applicant’s passage of the 1.5-mile run is correlated with that applicant’s performance on particular job tasks as a Corrections Officer. One expert testified that he had not observed any statistically significant correlation between aerobic capacity and performance, and stated that ‘it’s reasonable to assume that higher levels of fitness correlate with more positive outcomes and fewer negative outcomes,’ but did not provide any evidence linking successful completion of the 1.5-mile run with objective measurements of performance as a Corrections Officer.”
The Court granted Easterling’s motion for summary judgment, finding that no reasonable jury could conclude that the cut times used by the DOC for the 1.5-mile run were job-related for the position in question and consistent with business necessity.
Easterling v. State of Connecticut, 2011 WL 1740172 (D. Conn. 2011).
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