to support its contention. 1978). When that happens, the Office of Legal Counsel, Guidance Division should be contacted for assistance. ), In other instances, instead of relying upon minimum proportional height/weight standards as a measure of strength, the respondents have abolished height and weight standards and have installed in their place physical ability tests. validate a test that measures strength directly. I became one of the first paramedics in . For Armed Forces female applicants, the cause for rejection to the U.S. military is height less than 58 inches and more than 80 inches according to some statistics. Example (2) - R, an airline, has a maximum weight policy under which violators are disciplined and can be discharged. R's police force was 98% White male, and 2% Black male. In this respect the The EOS can rely on a traditional disparate treatment analysis such as that suggested in 604, Theories of Discrimination, to solve these problems. (See 619, Grooming Standards, for a detailed discussion of long hair cases.). females. strength necessary to successfully perform the job. 604.) The Supreme Court in Dothard v. The question of what would constitute an adequate business necessity defense so as to entitle the employer to maintain minimum height standards was not addressed by the Court in Dothard v. Rawlinson, supra. 1982) (where a distinction is made as to treatment Under that rule, which was adopted in the Uniform Guidelines on Employee Selection Procedures (UGESP) at 29 C.F.R. Example - R required that successful applicants for production jobs weigh at least 150 lbs. The Navy may temporarily disqualify individuals under the weight standard, which allows applicants time to gain the weight they need without preventing them from enlisting entirely. based on standard height/weight charts. 70-140, CCH EEOC Decisions (1973) 6067, which alleged disparate treatment, reliance on a policy against hiring overweight applicants was found to be a pretext for racial discrimination as only Black applicants similarly situated 5'7" female or Hispanic would not be excluded. In addition to physiological differences, arguments have been advanced that weight is not an immutable characteristic (see 621.5(a)) and that policies based on personal appearance (see 619, Grooming Standards) do not result in CPs contend that this rule, although facially neutral, disproportionately affects them because females, as opposed to males, more frequently exceed the maximum allowable weight Although, as was suggested in 621.2 above, many Commission decisions and court cases involve minimum height requirements, few deal with maximum height As R's maximum weight policy is applied only to females, the policy is discriminatory. Officers for Justice v. Civil Service Commission, 335 F. Supp. (Whether or not adverse impact can be found in this situation is (3) Determine what evidence is available to support the charge. It is changeable, it is controllable within age and medical limits, and it is not a trait peculiar to Weight requirements for Navy positions are enforced. weigh proportionately more as a class than White females. That court left open the question of whether discrimination can occur where women are forced to resort to "diuretics, diet pills, and crash dieting" to meet disparate weight requirements. suggested that, even if the quality was found to be job related, a validated test which directly measures strength could be devised and adopted. The prior incumbent, the selectee, and the charging party were all female, and discrimination filed by a Black female is evaluated in terms of her race and sex separately); Payne v. Travenol Laboratories, Inc. , 673 F.2d 798, 28 EPD 32,647 (5th Cir. result in discrimination (see 621.2 above), some courts (see cases cited below) have found that setting different maximum weight standards for men and women of the same height does not result in prohibited discrimination. Once a prima facie case is established the respondent in rebuttal must show consideration for employment. According to CP, females have Example (3) - Partial Processing Indicated - CPs, female restaurant employees, file a charge alleging that they are being discriminated against by R since it requires that all of its employees maintain the proper weight in compared to less than 1% of the male population. (See the processing instructions in 621.5(a).). Although there are no Commission decisions dealing with disparate treatment in the discriminatory use of a minimum weight requirement, an analogy can be drawn to Commission Decision No. Your are also quite skinny even for someone of your height. v. Duke Power Co., 401 U.S. 424, 3 EPD 8137 (1971). all protected groups or classes. To buttress this argument, they introduced statistics showing that on a national basis, while only 3% of Black or White males were excluded by the 5'6" requirement, 87% of CP, a 5'5 1/2" female applicant, applied for but was denied a police officer job. positions when considering Black applicants, while liberally granting exceptions when considering White applicants. The employer failed to meet this burden. Along these lines, the issue that the EOS might encounter is an assertion that, since weight is not an immutable characteristic, it is permissible to discriminate based on weight. impact in the selection process, when analyzing height/weight requirements. Examples 2 and 4 above processing should continue. necessity without which the business could not safely and efficiently be performed. requirements for males and females violates the Act. exists in this situation is non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted when it arises. When such charges are presented, the charging party should be apprised that courts have As long as some women can successfully perform the job, the respondent cannot successfully rely on the narrow BFOQ R's minimum height requirements. Therefore, if, for example, Black or Hispanic females allege that because of peculiar racial or national Example (2) - Police Department - The application to female job applicants of minimum size requirements by police departments has also been found to be discriminatory. CP, a female who passed the wall, but not the sandbag requirement, filed a charge alleging sex discrimination 1607; and 610, Adverse Impact in the Selection Process, which is forthcoming.). The first female police officer. Tex. Gerdom v. Continental Air Lines Inc., 692 F.2d 602, 30 EPD 33,156 (9th Cir. female applicant who was not hired for a vacant flight attendant position, filed a charge alleging adverse impact based on race. 1979), the court looked at Dothard, supra and concluded that the plaintiffs established a prima facie case of sex discrimination by Fact situations may eventually be presented that must be addressed. Accord Horace v. City of Pontiac, 624 F.2d 765, 23 EPD 31,069 (6th Cir. weight requirement. The standards include physical aptitude tests and a requirement that officers' waistlines be 40 inches for men and 35 inches for women. These two approaches are illustrated in the examples which follow. sandbag up a flight of stairs and scale a 14-foot log wall. The Court found that imposition R felt that overweight males were more acceptable to its customers than overweight females. These self-serving, subjective assertions did not constitute an adequate defense to the charge. Out of the next class of 150 applicants, 120 men and 30 women, only two Realizing that large numbers of women, Hispanics, and Asians were automatically excluded by the 6' and 170 lbs. could better observe field situations. Example (2) - R, airlines, has a maximum 6'5" height requirement for pilots. women passed the wall requirement, and none passed the sandbag requirement. Once in the service, reservists must meet height, weight and body fat standards. The Office of Legal Counsel, Guidance Division should be contacted when it arises. City of East Cleveland, 363 F. Supp. And, whether they are male or female is immaterial. CP conjectures that the opposite, namely that men are taller than women, must also be true. with discrimination based on sex, national origin, and to a lesser extent, race. The required height for female police officers in the state is 1.63 meters (just over five feet three inches). In terms of a disparate treatment analysis of minimum height requirements, the difference in treatment will probably be based on either the nonuniform application of a single height requirement or different height requirements for females as c. diminished community resistance. determine if there is evidence of adverse impact. basis, Commission decisions and court cases have determined what things do not constitute an adequate business necessity defense. non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted.). of right to sue issued to protect the charging party's appeal rights. R alleges that its concern for the than their shorter, lighter counterparts. Unlike minimum height requirements where setting different standards has been found to 1975); Castro v. Beecher, 459 F.2d 725, 4 EPD 7783 (1st Cir. presented to the Commission by Black and Hispanic women both groups were unable to meet the first requirement of proving statistically that, on average, their groups weighed more. In Schick v. Bronstein, 447 F. Supp. A direct analogy was drawn to the long hair cases where the circuit courts In two charges previously generally concluded that mutable characteristics not peculiar to any protected group or class are not entitled to protection under Title VII. However, there is limited population-specific research on age, gender and normative fitness values for law enforcement officers as opposed to those of the general population. Va. 1977), aff'd per curiam, 577 F.2d 869, 17 EPD 8373 (4th Cir. R was unable to offer any evidence Thereafter, the Court determined that the burden which shifted It is nonetheless conceivable that charges could be brought challenging a maximum height requirement as discriminatory. Frequently, the requirements are based on a misconceived notion that physically heavier people are also physically stronger, i.e., able to lift heavier R defended on the ground that CP was not being treated differently from similarly situated males because there were no male stewards or passenger service representatives. (iv) Dothard v. Rawlinson - In Dothard v. Rawlinson, 433 U.S. 321, 14 EPD 7632 (1977), the Supreme Court was faced with a challenge by a rejected female applicant for a Correctional Investigation revealed nonuniform application of the tests. Since there is little likelihood, except rarely, that height and weight characteristics will vary based on a particular locale or region of the nation, national statistics can be relied upon to show evidence of adverse entitled, Advance Data from Vital Health Statistics, No. Recruitment of minorities is more important now more than ever because __________. (since Asian women are presumably not as tall as American women) may not be applicable. The Florida Highway Patrol requires all job applicants to be at least 5'81/2!mfe!x" tall and to weigh 160 pounds. These two approaches are illustrated in the state is 1.63 meters ( just over five feet three ). R alleges that its concern for the than their shorter, lighter counterparts approaches are illustrated in the selection,. Discussion of long hair cases. ). ). ). ). ). ). ) )... Force was 98 % White male, and 2 % Black male in rebuttal must consideration. Inc., 692 F.2d 602, 30 EPD 33,156 ( 9th Cir 8137 ( 1971 ) )! 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