Y. 1978), an authorities department’s application of additional minimum top requirements for males in place of female try receive in order to make-up sex discrimination

In the Commission Decision Zero. 79-19, CCH A position Strategies Publication ¶ 6749, a masculine, 5’6″ extreme, confronted the application of the minimum, 5’5″ lady and you may 5’9″ male, level requirements and you may so-called whenever he was indeed a female the guy could have entitled to a police cadet position. The new respondent can either present a great consistent level requirements one to really does not have a detrimental feeling centered on competition, gender, or federal supply, otherwise introduce that level demands comprises a business need.

In Commission Choice No. 76-29, CCH A career Techniques Book ¶ 6624, the fresh Percentage located zero proof unfavorable effect facing females that have admiration in order to a bare unsupported allegation out of job denial predicated on sex, due to the absolute minimum top needs, in which you will find zero neutral peak rules, without you to definitely got ever been declined based on level. Along with, there is zero proof of disparate therapy. The prior incumbent, the fresh selectee, and also the recharging team was basically most of the ladies, there is actually no evidence one to a shorter male would not also provide started rejected.

The court in You.S. v. Lee way Engine Products, Inc., 7 EPD ¶ 9066 (D.C. Ok. 1973), found that a trucking company’s practice of nonuniform application of a minimum height requirement constituted prohibited race discrimination.

(c) Adverse Impact -

In early decisions, the Commission found that because of national significance, it was appropriate to use national statistics, as opposed to actual applicant flow data, to establish a prima facie case. The Commission also found that many of the employer proffered justifications for imposing minimum height requirements were not adequate to establish a business necessity defensemission Decision No. 71-1529, CCH EEOC Decisions (1973) ¶ 6231; Commission Decision No. 71-2643, CCH EEOC Decisions (1973) ¶ 6286; and Commission Decision No. 71-1418, CCH EEOC Decisions (1973) ¶ 6223. In contrast to the consistently held position of the Commission, some pre-Dothard v. Rawlinson, supra court cases came to different conclusions. Smith v. Troyan, 520 F.2d 492, 10 EPD ¶ 10,263 (6th Cir. 1975); Castro v. Beecher, 459 F.2d 725, 4 EPD ¶ 7783 (1st Cir. 1972). The Supreme Court in Dothard v. Rawlinson, supra, however, agreed with the Commission’s position and used national statistics to find that minimum height and weight requirements were discriminatory and that unsupported assertions about strength were inadequate to constitute a business necessity defense.

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. On a case-by-case basis, Commission decisions and court cases have determined what things do not constitute an adequate business necessity defense. The EOS should therefore refer to the ples set out in the following section for guidance. Where, however, the business necessity of a minimum height requirement for airline pilots and navigators is at issue, the matter is non-CDP, and the Office of Legal Counsel, Guidance Division should be contacted for assistance.

Example (1) – R, police department, had a minimum 5’6″ height requirement for police officer candidates. R’s police force was 98% White male, and 2% Black male. There were no female or Hispanic officers, even though the SMSA was 53% female and 5% Hispanic. CPs, female and Hispanic rejected job applicants, filed charges alleging that their rejections, based on failure to meet the minimum height requirement, were discriminatory because their protected groups were disproportionately excluded from consideration. 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 females and 88% of Hispanics were excluded. This was adequate to meet the charging parties’ burden of establishing a prima facie case. In its defense the respondent had its supervisory personnel testify that the minimum height requirement was necessary for the safe and efficient operation of its business. According to respondent, taller officers enjoyed a psychological advantage and thus would less often be attacked, were better able to subdue suspects, and could better observe field situations. These self-serving, subjective assertions did not constitute an adequate defense to the charge. They did not fairly and substantially relate to the performance of the duties of a police officer. Accord Horace v. BHM Dating Kalamazoo Town of Pontiac, 624 F.2d 765, 23 EPD ¶ 31,069 (6th Cir. 1980), and Innovative Justice Neighborhood Inc. v. Hughes, 471 F. Supp. 670, 20 EPD ¶ 30,077 (D.C. Md. 1979).