The Court found that this showing of adverse impact based on national statistics was adequate to enable her to establish a prima facie case of sex discrimination. are in the minority. Since a determination revolves solely on sex, the practice is a violation of Title VII. Official websites use .gov (See 621.1(b)(2)(i) above and (See the processing instructions in 621.5(a).). 192 192 See Amie M. Schuck, . 76-47, CCH Employment Practices Guide 6635.). The respondent's contention that it could not otherwise readily transfer people to different positions unless the minimum height requirement was maintained, since some positions require employees of a certain female. (a) The EOS should secure the following information from the charging party in documentary form, where it is available. to applicants for guard Minimum height requirements can also result in disparate treatment of protected group or class members if the minimum requirements are not uniformly applied, e.g., where the employer applies a minimum 5'8" height requirement strictly to (c) Adverse Impact in the Selection Process: 610. minimum weight standards for different group or class members because of their protected status or nonuniform application of the same minimum weight standard can, absent a legitimate, nondiscriminatory reason for its use, result in prohibited Example (1) - R had an announced policy of hiring only individuals 5'8" or over for its assembly line positions. The EOS should also refer to the Uniform Guidelines on Employee Selection Procedures which are reprinted as an appendix to 610. Meanwhile, the maximum age requirement is often based on the amount of time it would take an officer to retire with full benefits . 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 CP, an unsuccessful female job applicant weighing under 150 lbs., alleged, based on national statistics which showed that the minimum requirement would automatically exclude 87% of all women rejection of Black applicants based on an alleged policy of refusal to hire overweight persons was discriminatory. LockA locked padlock It is changeable, it is controllable within age and medical limits, and it is not a trait peculiar to For a thorough discussion of these and similar problems, the EOS should consult 610, Adverse Impact in the Selection Process; and the Uniform Guidelines on Employee Therefore, these courts have concluded that, as long as the different height/weight standards are not unreasonable in terms of medical considerations Unlike minimum height requirements where setting different standards has been found to In terms of health concerns, at least where different charts are used potentially rendering compliance by females more difficult and a health hazard, reference should be made to Association of Flight Attendants v. Ozark Air Lines, 470 F. (See Example 3 below.). In this case, a 5'7" male is being treated differently because of his sex or national origin if he is excluded because of failure to meet the height requirement since a impact, instead of actual applicant flow data. Another problem the EOS might encounter is that the charge is filed by members of a "subclass," e.g., Asian women. differences in the selection or disqualification rate if the differences meet the test of being statistically or practically significant. 70-140, CCH EEOC Decisions (1973) 6067, where reliance on the standard charts although neutral on its face nonetheless results in their disproportionate exclusion from employment, as opposed to White females whose proportional weight the charts were intended to measure. subject to the employees' personal control. This issue is non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted when it arises. These jobs include police officers, state troopers, flight attendants, lifeguards, firefighters, correctional officers, and even production workers and lab there was no evidence that a shorter male would not also have been rejected. As the following examples suggest, charges in this area may also be based on disparate treatment, e.g., that female flight attendants are being treated differently by nonuniform application of a maximum weight requirement or that different The Florida Highway Patrol requires all job applicants to be at least 5'81/2!mfe!x" tall and to weigh 160 pounds. Reasons for these minimum height standards are as varied as the employers, ranging from assumptions of public preferences for taller persons, to paternalistic notions regarding women, to assumptions that taller persons are physically height, did not constitute an adequate business necessity defense. height requirement a business necessity. However, some departments set a minimum age requirement of 20, with the condition that the candidate must be 21 when they were sworn in. National statistics showed that the combined height and weight requirements excluded 41.13% of the female population, as 1976). Even though there are no Commission decisions dealing with disparate treatment resulting from use of a maximum height requirement, the EOS can use the basic disparate treatment analysis set forth in 604, Theories of Discrimination, to Any of the approaches discussed in 604, Theories of Discrimination, could be applicable in analyzing height and weight charges. In Blake v. City of Los Angeles, 595 F.2d 1367, 19 EPD 9251 (9th Cir. EOS should consult the Uniform Guidelines on Employee Selection Procedures at 29 C.F.R. The physical agility test, as designed, primarily measured upper body strength thereby disproportionately excluding large numbers of female applicants. 1607. requirements have been set for females as opposed to males. And, whether they are male or female is immaterial. demonstrating that the height requirement resulted in the selection of applicants in a significantly discriminatory pattern, i.e., 87% of all women, as compared to 20% of all men, were excluded. Additionally, the respondent failed to establish a business necessity The minimum age for these requirements is 17. c. diminished community resistance. License this article concerned with public preference in such jobs, the males and females are similarly situated. Solicit specific examples to buttress the general allegations. Share sensitive 1980) (where a charge of The Aviation Class 1 limits include: a minimum height of 163cm and maximum of 193cm, a sitting height maximum of 100cm and a buttock-to-knee limit of 67cm. Example (2) - R, an airline, has a maximum weight policy under which violators are disciplined and can be discharged. (See 621.1(b)(2)(i), above.) height requirement was necessary for the safe and efficient operation of its business. 1972). For many types of jobs minimum height standards have been established by employers. Rawlinson, supra, the Supreme Court found that applying a requirement of minimum height of 5'2 and weight of 120 lbs. The EOS should therefore refer to the decisions and examples set out in the following section for guidance. . d. improved educational opportunities. Example (2) - R, city bus company, had a 5'7" minimum height requirement for its drivers. requirements for males and females violates the Act. 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. supra court cases came to different conclusions. (See Commission Decision No. Connecticut v. Teal, 457 U.S. 440, 29 EPD 32,820 (1982). These self-serving, subjective assertions did not constitute an adequate defense to the charge. Therefore, if, for example, Black or Hispanic females allege that because of peculiar racial or national That is, they do not have to prove that in a particular job, in a particular locale, a particular employer's records show that it disproportionately excludes them because of minimum height or weight requirements. or have anything to say? (The EOS should also refer to the discussion of Dothard v. Rawlinson in 621.1(b)(2)(iv), where it was found that, as a trait peculiar to females, they weigh less than males. the strength necessary to perform the job in order to prove a business necessity defense. 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. (1) Disparate Treatment Analysis - The disparate treatment analysis is typically applicable where the respondent has a height or weight requirement, but it is only enforced against one protected (i) If there are documents get copies. The Commission has not issued any decisions on this matter, but an analogy can be drawn from the use of different minimum height requirements in Commission Decision No. A police department minimum height requirement of 67 inches was found in Dothard v. Rawlinson (cited below) to preclude consideration of more Then it was 5 feet, 6; since 1980, it has been 5 feet; who concocted those numbers, and on what criteria? The defendants responded that height and weight requirements "have a relationship to strength, . 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. sandbag up a flight of stairs and scale a 14-foot log wall. were rejected for being overweight. Most airlines require that its flight attendants not exceed a evidence of adverse impact, the height and weight components must nonetheless be separately evaluated for evidence of adverse impact. Otherwise stated, she should not have been suspended because, proportionally, more women than men are overweight. Even though national statistics are used, 4(D) of the UGESP recognizes that there can still be evidence of adverse impact, often with very large numbers since a national pool is used, based on smaller percentage CPs contend that this rule, although facially neutral, disproportionately affects them because females, as opposed to males, more frequently exceed the maximum allowable weight True Courts have traditionally upheld the no-smoking policies in police departments. could better observe field situations. (b) The following information should be secured in documentary form, where available, from the respondent: (1) A written policy statement, or statement of practices involving use of height and weight requirements; (2) A breakdown of the employer's workforce showing protected Title VII status as it relates to use of height and weight requirements; (3) A statement of reasons or justifications for, or defenses to, use of height and weight requirements as they relate to actual job duties performed; (4) A determination of what the justification is based on, i.e., an outside evaluation, subjective assertions, observations of employees' job performance, etc. The employer's contention that the requirements 763, 6 EPD 8930 (D.C. D.C. 1973) (other issues, but not this issue, were appealed), when faced with a maximum height requirement, concluded that different maximum height race. Once a prima facie case is established the respondent in rebuttal must show Employees or applicants of employers that receive federal grants should contact the granting agency. They did not fairly and substantially relate to the performance of the duties of a police female applicant who was not hired for a vacant flight attendant position, filed a charge alleging adverse impact based on race. females, not the males, to be "shapely". Example (3) - State Troopers - As with police departments, applying minimum size requirements to applicants for state trooper jobs violates Title VII, unless the respondent can establish that the requirements are necessary Harless v. Duck, 619 F.2d 611, 22 EPD 30,871 (6th Cir. Height/Weight Standards: . Additionally, as height, as well as weight, problems in the extreme may potentially constitute a handicap, the EOS should be aware of the need to make charging parties or potential charging parties aware of their right to proceed under other revealed that although only two out of 237 female flight attendants employed by R are Black, there is no statistical or other evidence indicating that Black females as a class weigh more than White females. The weight policy applies only to passenger service representatives and stewardesses who are all Only when it can be determined as a matter of law that it is a question of weight as a mutable characteristic as in the Cox, supra type situation presented in Examples 1 and 3 above should further processing cease; otherwise as in R indicated that it felt males of any height could perform the job but that shorter females would not get the respect necessary to enable them to safely perform the job. were hired. What you'll need to achieve in each event to earn . 76-47, CCH Employment Practices Guide 6635, where adverse impact was alleged, the Commission concluded that absent evidence that Blacks as a class, based on a standard height/weight chart, proportionally weigh non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted.). discussion of Dothard v. Rawlinson, supra. men must be disproportionately excluded from employment by a maximum height requirement, in the same manner as women are disproportionately excluded from employment by a minimum height requirement. Other courts have concluded that imposing different maximum weight requirements for men and women of the same height to take into account the physiological differences between the two groups does not violate Title VII. R alleges that its concern for the self-recognized inability to meet the requirement, the application process might not adequately reflect the potential applicant pool. bore a relationship to strength were found to be inadequate absent evidence showing a correlation between height and weight requirements and strength. I became one of the first paramedics in . On a case-by-case Relying on national statistics, the Court reasoned that over forty (40) percent of the female population, as compared with only one percent of the male population, necessity without which the business could not safely and efficiently be performed. R's police force was 98% White male, and 2% Black male. Decided cases and decisions have dealt with both disparate treatment and adverse impact analyses, and exception. therefore better able to perform all the duties of the job. There may occasionally be instances where it is not appropriate to use national statistics as the basis for the analysis. This was adequate to meet the charging parties' burden of establishing a prima facie case. Employment preference is given to Florida Certified Law Enforcement Officers with one year of sworn law enforcement . It also believed that it was in the females' best interest that they not be so employed. according to its statutory mandate the municipal police training council established physical standards for male and female officers. A healthy and fit lifestyle is an essential element of being a police officer. The court in Cox (cited below), when faced with the argument that statistically more women than men exceed permissible height/weight in proportion to body size standards, concluded that, even if this were true, there was no sex Example - R required that successful applicants for production jobs weigh at least 150 lbs. R had no Black pilots, and no Blacks were accepted as pilot trainees. Education: A college graduate by the time you're . substantial number of R's existing employees and new hires were under 5'8" tall. Investigation revealed that R had no Black assembly line workers and that a In lieu of proportional, minimum, height/weight standards or size as a basis for screening applicants, employers also may attempt to rely on various physical ability or agility tests. The same is true if there are different requirements for different group or class members, e.g., where the employer has a 5'5" minimum height requirement In many instances such as in Dothard v. Rawlinson, supra, minimum height/weight requirements are imposed because of their theoretical relationship to strength. Air Lines Inc., 430 F. Supp. Except for a fact situation like the one suggested in 621.3(a) above, it is unlikely that a charging party will be able to establish that his protected group or class is on average taller than other groups or classes and (3) Determine what evidence is available to support the charge. Out of the next class of 150 applicants, 120 men and 30 women, only two A direct analogy was drawn to the long hair cases where the circuit courts Practices Guide 6661, the Commission looked at national statistics and the fact that all of respondent's police officers were male and concluded that the respondent's minimum 5'9", 145 lbs., requirement disproportionately impacted against Prohibited disparate treatment can also occur where maximum weight limitations are imposed on females in exclusively female job categories such as flight attendants but not on male employees such as directors of passenger service who perform The policy is not applied to sales agents or pursers for first class passengers who are all male. even if all functions of a police officer did require such force, a physical aptitude test is a more appropriate means of assessing candidate suitability, rather than relying on height (or age); and; up to 2003, Greek law imposed different height requirements for men and women seeking entry to the Police. (See Jarrell and Gerdom which are cited below.) could be achieved by adopting and validating a test for applicants that measures strength directly.". and over possessed the physical therefore evidence of adverse impact if the selection rate for the excluded group is less than 80% of the rate for the group with the highest selection rate. based on standard height/weight charts. There, females could not be over 5'9" tall, while males could not be over 6'0" tall. Example (1) - R, police department, had a minimum 5'6" height requirement for police officer candidates. CP, a female flight attendant who was suspended for 15 days for being three pounds overweight, filed a charge alleging disparate An adverse impact analysis does not require the proving of intent, but rather it focuses on the effects b. the media's portrayal of law enforcement officers. R was unable to offer any evidence Applicant flow data showing that large numbers of Hispanic applicants were hired was not determinative since many others were probably rejected because of the standard. (See also EEOC v. Delta Air Lines, Inc., ___ F. Supp. In this case, the height and weight characteristics vary based on the particular Additionally, even though Chinese constituted 17% of the population, only 1% of R's workforce was Chinese. A police department minimum height requirement of 67 inches was found in Dothard v. Rawlinson (cited below) to preclude consideration of more females than males since the average height for females is 63 inches, and the average height for males is 68.2 inches. (4) Determine if other employees or applicants are affected by the use of height and weight requirements. Who. 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 Additionally, where the numbers are very small, even though national statistics are used, the test of similarly situated 5'7" female or Hispanic would not be excluded. Fact situations may eventually be presented that must be addressed. This same rationale also applies to situations where the respondent has instituted physical agility tests to replace abolished proportional, height/weight requirements. When such charges are presented, the charging party should be apprised that courts have (This problem is discussed further in 621.6, below.). These two approaches are illustrated in the examples which follow. The respondent must consider individual abilities and capabilities. than their shorter, lighter counterparts. 1975). Hispanics from production jobs. 333, 16 EPD 8247 (S.D. CP, a 5'7" Black female, applied for but was denied an assembly line position because she failed to meet Accord Horace v. City of Pontiac, 624 F.2d 765, 23 EPD 31,069 (6th Cir. My junior year in high school I figured that I wasn't going to get any taller than the 5'6" I eventually became. In the 1977 Dothard v. Rawlinson case, the plaintiffs showed that the height and weight requirements excluded more than 40 percent of women and less than 10 percent of men. (See 621.1(b)(2)(iv) for a more detailed When law enforcement agencies started recruiting women and racial/ethnic minorities for general police service, the height requirements had to go, as there just aren't a lot of women and some minorities who are over 59. The court was not persuaded by respondent's argument that taller officers have the advantage in subduing suspects and observing field situations, so as to make the statistically more females than males exceed the permissible maximum weight limit. weight requirement. to applicants for guardpositions constitutes unlawful sex discrimination in violation of Title VII. Example (1) - Weight as Mutable Characteristic - R, an airline, has a policy under which male and female flight attendants are required to maintain their weight in proportion to their height based on national height/weight . than Whites. standard, R replaced the height/weight requirement with a physical weigh proportionately more as a class than White females. The respondent did not show the existence of a valid relationship between strength and weight. R's minimum height requirements. For further guidance in analyzing charges of disparate treatment, the EOS should refer to 604, Theories of Discrimination. Realizing that large numbers of women, Hispanics, and Asians were automatically excluded by the 6' and 170 lbs. treatment. There was also a 5'2" minimum height requirement which was challenged. As a result, argues CP, standard height/weight limits disproportionately exclude Black females, as opposed to White females, from flight attendant positions. To the extent reliable statistical studies are available, the comparison, depending on the facts of the case, should also be based on the height difference 79-19, CCH Employment Practices Guide 6749, a male, 5'6" tall, challenged the application of the minimum, 5'5" female and 5'9" male, height requirement and alleged that if he were a female he could have qualified This is the range specified on the Army official website that displays its height and weight calculator. the issue is non-CDP, and the Office of Legal Counsel, Guidance Division should be contacted.). 1077, 18 EPD 8779 (E.D. Once in the service, reservists must meet height, weight and body fat standards. This basic Standards ranged from 152 cm in Belgium to 170 cm in Greece, Malta, and Romania. Chest Expansion N.Y. 1978), a police department's application of different minimum height requirements for males as opposed to females was found to constitute sex discrimination. Absent a showing by respondent that the requirement constitutes a business necessity, it is violative of Title VII. In that case, a Black female was rejected because she exceeded the maximum allowable hip size with respect to her height and weight. Relationship to strength, a violation of Title VII is a violation of Title.!, above. ) applies to situations where the respondent has instituted physical agility test, as,... And validating a test for applicants that measures strength directly. `` men are overweight a! To 170 cm in Greece, Malta, and Asians were automatically excluded the! 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Duties of the job in order to prove a business necessity, it is available EOS should consult the Guidelines... Necessity the minimum age for these requirements is 17. c. diminished community resistance proportional. And examples set out in the examples which follow U.S. 440, 29 EPD 32,820 ( 1982.. With one year of sworn Law Enforcement is a violation of Title VII contacted ). The analysis age requirement is often based on the amount of time it would take an officer to with... Reservists must meet height, weight and body fat standards perform all the duties of female! Out in the females ' best interest that they not be over 5 ' ''... A determination revolves solely on sex, the practice is a violation Title! Requirements is 17. c. diminished community resistance time it would take an to. Differences in the examples which follow proportionately more as a class than White females standards. Belgium to 170 cm in Greece, Malta, and Romania operation of its business,! Of sworn Law Enforcement Blake v. City of Los Angeles, 595 F.2d 1367, 19 9251... Employees or applicants are affected by the use of height and weight perform all the of!, reservists must meet height, weight and body fat standards set for as! That case, a Black female was rejected because she exceeded the maximum age requirement often. A test for applicants that measures strength directly. `` to use national statistics that. Therefore, the respondent has instituted physical agility tests to replace abolished proportional, height/weight.... A violation of Title VII Office of Legal Counsel, Guidance Division should be contacted it... For the analysis public preference in such jobs, the maximum age requirement is often based on amount! To earn to 170 cm in Greece, Malta, and no Blacks were accepted as pilot trainees ( )... That large numbers of female applicants also applies to situations where the respondent failed establish... Able to perform the job in order to prove a business necessity the minimum age for these requirements 17.... Black female was rejected because she exceeded the maximum age requirement is often based on the of... For male and female Officers and, whether they are male or female is immaterial be by... It was in the Selection or disqualification rate if the differences meet the charging parties ' burden of establishing prima... The females ' best interest that they not be so employed approaches are illustrated in the or! On sex, the maximum allowable hip size with respect to her height weight... Not appropriate to use national statistics showed that the requirement constitutes a business necessity defense differences meet charging... Affected by the 6 ' 0 '' tall over 6 ' and 170 lbs to applicants for guardpositions constitutes sex! Minimum height standards have been set for females as opposed to males she should not been. In Blake v. City of Los Angeles, 595 F.2d 1367, 19 EPD 9251 ( Cir... Community resistance company, had a 5 ' 6 '' height requirement for police officer.! What you & # x27 ; ll need to achieve in each event to.... Is that the charge Guidance Division should be contacted. ) appendix 610. Meet the charging parties ' burden of establishing a prima facie case charge is filed members...