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By John Gales Sauls, Apr. 1995
[Special Agent Sauls is a legal instructor at the FBI Academy.]
A law enforcement manager is reviewing a requirement that all of the department's police officers be U.S. citizens, as well as high school graduates.
Another manager is deciding whether to adopt a written promotional exam. A third is evaluating a physical fitness test that is part of the department's hiring process for officers. Because the standards under review may place certain segments of the public at a disadvantage, each manager should be concerned about the legal consequences of using the standards.
This article discusses the legal defensibility of employment standards that, although neutral on their face, have an unequal impact on candidates depending on race, color, sex, national origin, or religion. It also offers strategies for assessing the usefulness of such standards.
The Griggs Decision
In 1971, a unanimous Supreme Court issued its opinion in the case of Griggs v. Duke Power Co.,1 holding that for purposes of hiring and assignment to laborer positions, an employer's use of a high school diploma requirement and two standardized written tests, each of which disqualified a higher percentage of blacks than whites, violated Title VII of the Civil Rights Act of 1964.2 The Court stated that it was the intent of Congress to prohibit "...artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification."3 Announcing "business necessity" as the legal yardstick for assessing the legality of such standards, the Court held that if an employment practice that operated to exclude blacks could not be shown to be related to job performance, the practice was prohibited. Other than later stating that "any given requirement must have a manifest relationship to the employment in question,"4 the Court did not provide additional guidance regarding the meaning of the phrase "business necessity."
In the 24 years since the Griggs decision, employers and courts have attempted to define business necessity and use it to evaluate a wide range of employment practices. Although the body of law that resulted is complex and difficult for law enforcement managers to apply, certain factors have emerged as keys to assessing the legality of employment practices that create disparity.5 The factors include:
1) The degree of disparity created by use of the standard
2) The demonstrated factual relationship between achieving the employment standard and successful performance of the job in question
3) Whether achievement of the employment standard is determined by a "neutral" entity external to the employer
4) Whether the employment standard focuses on innate, unalterable characteristics of candidates
5) Whether the job in question has a direct impact on public safety, and
6) The availability of effective alternative standards that create a lesser disparity.
Law enforcement managers have a wide range of employment standards from which to choose. Their departments will benefit if managers choose standards that, in addition to being effective, are on the "good" side of as many of the factors discussed as possible.
For example, because policing involves both decisionmaking and effective interpersonal communication, frequently with persons of differing cultures, mental development and emotional maturity are essential qualities in police officers. In selecting a standard to identify candidates who possess these qualities, a manager might weigh the creation of written tests on one hand versus the use of structured educational requirements on the other. If the effectiveness of the two standards and the disparity created by their use are equal, the factors would favor using the educational requirements because educational achievement is determined by "neutral" entities external to the police department.
DEGREE OF DISPARITY
Existence of Prima Facie Case
A person claiming that an employment standard has a disparate impact based on race, color, sex, national origin, or religion must demonstrate factually a disparity of legal consequence before the law will require an employer to demonstrate business necessity.6 A person who has established such a disparity is said to have established a prima facie case of discrimination.
In evaluating whether an employment standard has a disparate impact, a mathematical comparison must be made of a particular group's success rate in regard to the standard versus the success rate of other groups. Where the standard creates no disparity, no demonstration of business necessity is required.
For example, in Drake v. City of Fort Collins,7 an unsuccessful police officer candidate challenged the legality of the department's requirement of 2 years of college credits, alleging that the standard had a disparate impact on blacks.
Assessment of the department's statistics revealed that the standard eliminated only 12.5 percent of black candidates, compared to the elimination of 16 percent of non-black candidates. The court held that no assessment of the business necessity of the educational requirement was required in the absence of a showing of statistical disadvantage.
If some statistical disparity is detected, a determination as to whether the disparity is legally significant is required. Because some degree of disparity probably is inherent in almost any standard, the "rule of four- fifths" has become a rule of thumb for measuring the legal significance of detected disparities. This rule provides that when the success rate of a group is less than 80 percent of that of the most successful group, then the less successful group is disadvantaged to a legally significant extent.8
Quantum of Business Necessity Proof Required
The existence of a legally significant disparity creates the employer's burden of establishing the business necessity of the stand-ard.9 However, the importance of the numerical result continues, because as a general rule, the greater the disparity, the more extreme the judicial scrutiny to which the employer's business necessity proof is subjected. One court stated, "As a general principle, the greater the test's adverse impact, the higher the correlation [between test perform-ance and job performance] which will be required."10 Extremely high statistical disparities require compelling justification.11
RELATIONSHIP BETWEEN EMPLOYMENT STANDARD AND SUCCESSFUL JOB PERFORMANCE
Direct and Obvious Relationship
An employer using a selection standard with a legally significant disparate impact usually can demonstrate successfully the business necessity of the standard when it has a direct and obvious relationship to successful performance of the job in question. For example, judges quickly grasp the relationship between a sound lower back and the performance of heavy manual labor12 or between a requirement of either 2 years of truckdriving experience or completion of truck-driving school for persons who drive large trucks as part of their job.13 Particularly instructive are two recent cases involving employers' requiring employees to be clean-shaven. In each, black employees alleged that the requirement had a disparate impact because of pseudofolliculitis barbae, a bacterial disorder that causes men's faces to become infected if they shave and that disproportionately afflicts black men.
In the first case, firefighters were required to be clean-shaven because facial hair interfered with the use of positive-pressure, self-contained breathing apparatuses by preventing the face mask from successfully sealing against the face. The potential consequence of an imperfect seal includes the inhalation of noxious fumes produced by fires, resulting in disorientation, unconsciousness, and death. The court ruled the requirement was required by business necessity.14
In the second case, a pizza sales and delivery company required its employees to be clean-shaven based on its "common sense" determination that "the better our people look, the better our sales will be" and the results of a public opinion survey indicating that up to 20 percent of customers would "have a negative reaction" to a delivery person wearing a beard.15 Noting that the "existence of a beard on the face of a delivery man does not affect in any manner [the employer's] ability to make or deliver pizzas to their customers," the court held the requirement was not a product of business necessity.16 An important lesson from the contrasting results in these cases is that courts do not approve employment standards in the abstract, but only in relation to the requirements of a particular job.
A fire department using a different type of breathing apparatus not requiring a facial seal probably would be unsuccessful defending a similar "no beard" policy. As will be noted later, other key factors also were involved in the fire department's success. In regard to the adverse ruling against the pizza delivery firm, the relationship between a clean-shaven personal appearance and sales was not as obvious and direct as the relationship between firefighting and the successful use of breathing apparatus.
Law enforcement and fire departments attempting to enforce physical fitness requirements similarly have been able to prove business necessity when using a test to evaluate physical performance that closely replicates physical tasks actually performed on the job.
For example, in Zamlen v. City of Cleveland,17 one event challenged was a preemployment test for firefighter candidates requiring that "...while wearing a custom-tailored self-contained breathing apparatus, candidates must drag two lengths of standard 2 1/2" hose 180 feet (90 feet one way, drop coupling, run to the other end of the hose, pick up and return 90 feet, drop coupling in designated area), run 75 feet to pumper, remove a one-person ladder (approximately 35 lbs.) from the side of the pumper, carry the ladder into the fire tower, place it against the back rail of the first landing and continue up the inside stairwell to the fifth floor where a monitor observes the candidate's arrival. Then candidates return to the first landing, retrieve the ladder and place it on the pumper."18 Despite the fact that Cleve-land's firefighter test eliminated, for practical purposes, every female candidate, it was held to be lawful based on its direct and obvious relationship to successful firefighting.
Abstract measures of fitness, such as push-ups, which do not obviously replicate on-the-job tasks, are generally found by courts not to be a product of business necessity.19 Unfortunately for law enforcement managers, the physical tasks of a police officer are not as obvious as those of a firefighter and neither are they as broadly related to successful job performance. Nonetheless, creative approaches to replicating the physical demands of policing have been discovered.20 Scientific Proof of the Relationship (Validation) An employer's using a selection standard that measures candidate ability in the abstract, such as a written aptitude test, will be required, if the standard produces a legally significant disparate impact, to present specialized scientific proof of business necessity due to the standard's less direct or obvious relationship to successful job performance.21 The process by which this is done is known as formal validation.22
The U.S. Supreme Court has described the requirement by stating, "...discriminatory tests are impermissible unless shown, by professionally accepted methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' "23
Validation studies should be performed in accord with the Equal Employment Opportunity Commission Uniform Guidelines on Employee Selection Procedures.24 Such studies generally require the per-formance of a job-task analysis to identify and quantify important job behaviors, a professional assessment to determine what knowledge, skills, and abilities (KSAs) are required to perform successfully the important job behaviors, a selection of appropriate measurement devices to determine the degree to which candidates possess the requisite KSAs, and a statistical study to establish the relationship between scores on the proposed selection instruments and successful job per-formance.
Because most employers do not have a staff of industrial/organizational psychologists and statisticians, compliance with the Uniform Guidelines usually requires the assistance of a consulting firm specializing in employment testing to devise and evaluate testing instruments and give expert testimony in court regarding the results of their work.
The formal validation process is complicated and usually expensive. In most instances, it comes with no guarantee of success. Consequently, it is to the advantage of law enforcement managers to consider carefully available alternatives to employment stand-ards involving abstract measurement of candidate abilities, because such standards likely will require formal validation.
IS SUCCESS ON THE STANDARD DETERMINED BY "NEUTRAL" ENTITY?
Primarily due to a judicial concern that employers might use selection devices to practice covert discrimination, the burden of proving business necessity varies based on the determination of whether a candidate's success is made by the employer or by an entity external to the employer.
External determinations are subjected to less extreme scrutiny.
For example, in Aguilera v. Cook County Police and Corrections Merit Board,25 a law enforcement employer required that corrections officers be high school graduates. In upholding this requirement as lawful based upon its business necessity, the court noted, "[t]ests are made and scored by the employer, hence easily misused; degrees are awarded by schools that are independent of the employers who use the degrees as job qualifications."26
In Aguilera, the court held that the job of corrections officer was sufficiently complex and demanding that a high school diploma requirement was a product of business necessity. In addition to educational accomplishments, licensing and certification usually are performed by entities external to an employer. On the disqualifier side of the ledger, criminal convictions are imposed by courts, not employers.27 Certain types of licensing and certification have an apparent relationship to policing. Officers obviously need a driver's license. Because officers are often the first officials to arrive at scenes where persons require medical assistance, a department lawfully might prefer to hire persons certified as emergency medical technicians. Careful scrutiny of policing responsibilities may identify other useful, job-related standards.
INNATE QUALITIES VERSUS THOSE THAT MAY BE ACQUIRED/ACHIEVED
Judicial scrutiny of standards also varies based on whether a standard is one that can be achieved by a candidate, contrasted to a standard that focuses on a candidate's innate, unalterable characteristics. Standards that may be achieved by most are defended more easily than those that focus on characteristics that are determined by birth or circumstance. For example, it is much easier to defend a high school diploma requirement for a job than a requirement that demands applicants to be at least 6 feet tall.28 The high school diploma is accessible to vast multitudes if they put forth the required effort, but 6-foot stature is not a matter of desire, ability, and effort. A person can have little, if any, impact on adult stature.
Law enforcement managers should scrutinize standards to identify those that focus on candidates' innate, unalterable characteristics and use them only where absolutely necessary. This process requires considerable thought and perception. For example, it probably was no more obvious to managers of a fire department that a "no beard" policy focused on an innate characteristic than that it would have a disparate impact based on race or color. Nonetheless, the innate character of pseudofolliculitis barbae resulted in heightened judicial scrutiny of the "no beard" policy for both the fire department and the pizza delivery company.
STANDARD'S IMPACT ON PUBLIC SAFETY
Courts have recognized that employers who make personnel decisions that have an impact on public safety need greater latitude in establishing business necessity. Consequently, courts require less of a showing of business necessity where public safety hangs in the balance. In this regard, one court stated:
When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminated against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court's satisfaction that his employment criteria are job-related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related.29
Thus, a law enforcement employer would enjoy greater latitude when hiring police officers than when hiring clerical employees because police officers have a more direct role in preserving public safety. In this regard, one court observed: "Unlike other work positions this court or the Supreme Court has considered, the position of officer on the Dallas police force combines aspects of both professionalism and significant public risk and responsibility. We regard this distinction as crucial...."30
AVAILABILITY OF NON-DISCRIMINATORY ALTERNATIVE MEANS
Employers always should seek out employment standards that will create as little disparity as possible, while still accomplishing the employer's legitimate employment needs. Nonetheless, Congress has chosen to place the burden of proof on the issue of the existence of non-discriminatory alternative means on the employee.31
Under Title VII of the Civil Rights Act of 1964, an employer is required to demonstrate the business necessity of employment standards that have a legally significant disparate impact based on race, color, national origin, sex, and/or religion. Consequently, each employment standard must be scrutinized to determine whether it has a potential disparate impact, and if so, whether the standard is a product of business necessity.
As has been noted, business necessity is not a single, fixed stand-ard. Instead, it is a judicial determination based on numerous factors. The severity of judicial scrutiny may vary from mild, for a procedure or standard that has a minor disparate impact and the satisfaction of which is under control of an entity external to the employer, to severe, where the procedure or standard has an extreme disparate impact and relates to innate characteristics of candidates.
In selecting standards, managers should seek effective ones with the least disparate impact and that are defended most easily based on the factors discussed.
Returning to the issues addressed in the opening of this article, the first manager recognizes that his department's requirement that officers be U.S. citizens will impact disproportionately based on national origin. A careful assessment of the relationship between U.S. citizenship and successful performance as a police officer may reveal that the standard is not necessary or that it may be replaced with a similarly effective standard, such as a requirement that a person have lived in the United States long enough to acquire necessary cultural knowledge and to indicate a permanent allegiance.
Certain factors favor the defensibility of a citizenship requirement. The determination of whether one is a citizen is made by an entity external to the police department and the requirement is one that may be achieved. Thus, the level of judicial scrutiny the standard will receive if challenged will be relatively light.
Nonetheless, the relationship between citizenship and success as a police officer may be hard to establish. Defense of the high school diploma requirement likely will be successful, because courts have almost taken judicial notice of the business necessity of this educational requirement for police.
The second manager is considering the adoption of a written promotional exam. Written tests frequently result in substantial disparate impact on minority groups. Because the relationship between scores on written tests and successful performance in par-ticular jobs is rarely direct and obvious, formal validation of the proposed test almost certainly will be required.
Judicial scrutiny of this internally created and scored test is likely to be intense, particularly if its use results in a substantial disparate impact. This manager needs to make sure that a formal validation study has been done scientifically to establish a clear relationship between success on the test and success in the position for which the test is used to select.
The last manager is evaluating a physical fitness test for officer candidates. Physical fitness tests frequently have a disparate impact on women.
This manager will most likely demonstrate the business necessity of a physical test if it results only in a mild disparity and the events included closely replicate important physical tasks performed by police officers.
Almost any employment instrument or standard may result in a disparate impact based upon race, color, national origin, sex, and/or religion. It is essential that law enforcement managers, with professional assistance when necessary, scrutinize their departmental standards for potential disparate impact and review the business necessity support for those identified as potential causes of disparity.
1 401 U.S. 424 (1971).
2 42, United States Code (U.S.C.), Section 2000e-1 et seq. (1991).
3 401 U.S. at 431.
4 401 U.S. at 432.
5 Some of the lack of clarity regarding business necessity has been a consequence of controversy regarding the allocation of the burden of proof on the issue. Congress resolved the issue by amendment of Title VII in the Civil Rights Act of 1991. 42, U.S.C., Section 2000e-2(k)(1)(A)(i) (1991).
6 42, U.S.C., Section 2000e-2(k)(1)(A)(i) (1991).
7 927 F.2d 1156 (10th Cir. 1991).
8 EEOC "Uniform Guidelines on Employee Selection Procedures," 29, Code of Federal Regulations (C.F.R.), 1607.4(D) (1988).
9 Under Title VII, once an employee demonstrates that a particular employment standard has a legally significant disparate impact, the employer must prove that its use is required by "business necessity." 42, U.S.C., Section 2000e-2(k)(1)(A)(i) (1991).
10 Clady v. County of Los Angeles, 770 F.2d 1421, 1432 (9th Cir. 1985), cert. denied, 475 U.S. 1016 (1986).
11 See, e.g., Zamlen v. City of Cleveland, 906 F.2d 209 (6th Cir. 1990), cert. denied, 111 S.Ct. 1388 (1991). (City's selection system for firefighters eliminated essentially 100% of female candidates. Due to very substantial demonstration of job-relatedness of each component of selection system, it was held to be justified by "business necessity."); Newark Branch, NAACP v. Harrison, 940 F.2d 792 (3d Cir. 1991) (Harrison, a Newark, New Jersey, suburb, which had a black population of .2 percent, required that town employees be residents of the town. As a consequence, the town had no black employees, despite the fact that the private workforce in the town was more than 20 percent black. The residency requirement was held not to be a product of business necessity.)
12 See Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977).
13 See Chrisner v. Complete Auto Trans., Inc. 645 F.2d 1251 (6th Cir. 1981). See also, New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) (Transit authority's exclusion from workforce of users of illegal drugs, as well as those on methadone maintenance, supported by business necessity.)
14 Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). A similar direct, obvious relationship between a job requirement and employment standard was found in Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987). In that case the Omaha Girls Club, a private, nonprofit corporation that offered programs to assist young girls between the ages of 8 and 18 to maximize their life opportunities required that its counselors, if unmarried, were not to become pregnant. Recognizing the importance of the counselors as role models for the girls the organization served, the court held that the rule against out-of-wedlock pregnancies was a product of "business necessity," despite its unequal impact based upon race and color.
15 Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795 (8th Cir. 1993). 16 7 F.3d at 799. 17 906 F.2d 209 (6th Cir. 1990), cert. denied, 111 S.Ct. 1388 (1991).
18 906 F.2d at 213. Similarly, in Evans v. City of Evanston, 881 F.2d 382 (7th Cir. 1989), cert. denied, 112 S.Ct. 3028 (1992), the Evanston Fire Department used a physical agility test that consisted of "a group of tasks which were to be performed consecutively by each applicant without a break, while wearing a firefighter's uniform. The tasks were: climbing to the top of a 70-foot ladder; climbing an extension ladder twice while carrying a hose pack; removing a ladder from a firetruck, carrying the ladder to a wall, leaning it up against the wall, and then removing it and returning it to the truck; connecting a hose to a fire hydrant, turning the hydrant on and off, and disconnecting the hose; and dragging a section of hose filled with water fifty feet, dragging a tarpaulin to the top of a hill, carrying the tarp through ten tires, and again dragging a section of hose filled with water fifty feet." 881 F.2d at 383, 384.
19 See, e.g., Harless v. Duck, 619 F.2d 611 (6th Cir. 1980), cert. denied, 446 U.S. 928 (1980). In this case, the Toledo Police Department used a physical ability test in its selection of patrol officers. The test had four parts, of which applicants were required to complete three in order to pass. The parts were: 15 push-ups; 25 sit-ups; 6-foot standing broad jump; and a 25-second obstacle course. After finding that the physical ability test had a disparate impact on women, the court noted that no justification had been shown for the "types of exercises chosen or the passing marks for each exercise." 619 F.2d at 616.
20 See Schofield, "Hiring Standards: Ensuring Fitness for Duty," FBI Law Enforcement Bulletin, November, 1993, pp. 27-32; U.S. v. Wichita Falls, 704 F.Supp. 709 (N.D.Tex. 1988) (obstacle course simulating foot pursuit).
21 A detailed discussion of validation evidence is found in Bernard v. Gulf Oil Corp., 841 F.2d 547 (5th Cir. 1988) (Bernard IV.); 890 F.2d 735 (5th Cir. 1989), cert. denied, 110 S.Ct. 3237 (1990) (Bernard V.).
22 A detailed discussion of the various types and methods of validation is beyond the scope of this article.
23 Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) (quoting 29, C.F.R., Section 1607.4(c)). See also, Contreras v. City of Los Angeles, 656 F.2d 1267, 1280 (9th Cir. 1981), cert. denied, 455 U.S. 1021 (1982).
24 29, C.F.R., Section 1607 et seq.
25 760 F.2d 844 (7th Cir. 1985), cert. denied, 106 S.Ct. 237 (1985).
26 760 F.2d at 847.
27 See Schofield, "Hiring Standards: Ensuring Fitness for Duty," FBI Law Enforcement Bulletin, November, 1993, pp. 27-32.
28 Compare Aguilera v. Cook County Police and Corrections Merit Board, 760 F.2d 844 (7th Cir. 1985), cert. denied, 106 S.Ct. 237 (1985), with Blake v. Los Angeles, 595 F.2d 1367 (9th Cir. 1979), cert. denied, 100 S.Ct. 1865 (1980).
29 Spurlock v. United Airlines, 475 F.2d 216, 219 (10th Cir. 1972) (approving requirement of 500 hours of previous pilot experience, and that of a college degree for airline pilot trainees). It is this "public safety" doctrine, coupled with the skilled nature of the police officer job, that has resulted in the approval of high school diploma requirements for police, in contrast to the rejection of such a requirement for unskilled jobs in Griggs v. Duke Power Co., 401 U.S. 424 (1971).
30 Davis v. City of Dallas, 777 F.2d 205, 211 (5th Cir. 1985), cert. denied, 476 U.S. 1116 (1985) (approving requirement of at least 45 college credits with at least a C average, no recent marijuana use, and no recent hazardous driving convictions for consideration in hiring police officers).
31 42, U.S.C., Section 2000e-2(k)(1)(A)(ii) (1991).
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