Arduous fitness test found legal by court

Claims of discrimination against women denied

In a landmark decision, the U.S. District Court for the Eastern District of Pennsylvania ruled that in some cases employers can "discriminate" when establishing fitness tests for employees.

The case, Lanning vs. SEPTA, et al., was a class action suit brought by individual employees of SEPTA, Philadelphia’s transit authority, and the civil rights division of the federal justice department.

"Their claim was that the physical abilities test for transit police officers implemented by SEPTA in response to increased crime discriminated against women," explains Saul H. Krenzel, JD, whose Philadelphia-based firm successfully defended SEPTA.

The suit claimed that SEPTA was in violation of Title VII of the Civil Rights Act of 1964. "This seminal civil rights act includes a proscription against employer discrimination on the basis of race, sex, or national origin," explains Krenzel, whose firm specializes in defending employment discrimination cases for management.

Response to crime epidemic

The test was instituted in response to a near epidemic of crime in Philadelphia’s transit system in the late 80s and early 90s. The city’s new administration commissioned

"A highly regarded developer of physical abilities tests in the protective service area design[ed] a program that would screen for individuals who would have the requisite abilities to perform duties," notes Krenzel. "These people — over 90% of whom deployed on foot — do not have access to backup; they could be required to regularly either jog, run full out, pace themselves for five city blocks, and climb three or four stairwells to respond to a crime."

The expert, Paul Davis, Phd, of Maryland, designed a field test of aerobic capacity. It consists of a 1.5-mile run that had to be accomplished in 12 minutes or less. "That translates into an aerobic capacity of 42 ml per kilogram per minute," explains Krenzel, noting that Davis is credited with having broken new ground in linking physical abilities tests to performance, and predicting future success in certain aspects of police or fire work.

SEPTA’s legal problems arose from the fact that between 1993 and 1996, approximately 90% of the women who took the aerobic capacity test failed it, while only 50% of the men failed. "This created a cause of action under Title VII," says Krenzel.

Justifying discrimination’

If the test was that much more difficult for women to pass, why did the court rule in SEPTA’s favor? "The defense we have is that the test we are using is justified by business necessity — i.e., it predicts performance, and there is no other test available that is equally predictive or fully serves the employer’s legitimate interest," says Krenzel. "You have to demonstrate your test is predictive — that is the challenge in Lanning."

To win the case, the defendant had show that a lower level of aerobic fitness would not equally serve SEPTA’s interests, and that threshold of aerobic capacity was the minimal level required to perform the job.

Under Title VII, if the difference in pass rates is statistically significant, there is an "adverse impact" on a particularly group; and, Krenzel says, you are discriminating. "You have to justify why [you are discriminating], keeping in mind that the intention was not to discriminate but to screen — after all, we flunked 50% of the males. SEPTA didn’t care about the gender, but the aerobic capacity, because it’s such a critical aspect of the job."

Impact on employers

What types of employers might need to "discriminate" in a similar fashion? "Obviously, police, fire departments, or any other protective service organizations would be interested in this case," notes Krenzel. "Maybe companies whose employees do heavy lifting. But you need to demonstrate that it is used on the job. If you require a bench press as part of a test for a warehouse job, you need an empirical link between the bench press and the actual job — the same muscles, and so forth. In your gut you know there is a connection, but can you prove it?"

In the Lanning case, Krenzel also proved that the test resulted in more arrests and officer accommodations — at strikingly higher levels. "And, performance differed according to aerobic capacity, not by gender," he notes. "Women with higher aerobic capacity do better than men with lower aerobic capacity."

If you are considering instituting a fitness test, you must first conduct a job study that analyzes the various job activities, Krenzel advises. "You should bring in a physiologist who is trained in this area," he says.

You must do your homework, he warns. "The Justice Department has sued companies in the past and forced the use of normative data – in other words, different data for men and women.

The government’s perspective is that women on average have lower aerobic capacity than men, absent training, and that there should be a dual standard in police and fire departments. We say that makes no sense; you must look at the demands of the job. We also demonstrated that women in large numbers can meet this requirement with some nominal training. We had some females testify that they practiced for two to three weeks and passed the test."

The bottom line: Don’t be afraid to establish actual physical requirements of the job and implement them. "If you establish and document the standards, and are prepared to show how you did it, you will survive a challenge from the government," says Krenzel.

[For more information, contact: Saul H. Krenzel, Suite 1600, 225 S. 15th St, Philadephia, PA 19102. Telephone: (215) 732-6444. Fax: (215) 732-6354. E-mail: shkrenzel@aol.com.]