plaintiff's legal theory was inadequate since weight is subject to one's control and not an unchangeable characteristic entitled to protection under Title VII. Education: A college graduate by the time you're . 76-47, CCH Employment Practices Guide 6635.). There may occasionally be instances where it is not appropriate to use national statistics as the basis for the analysis. 71-1529, CCH EEOC Decisions (1973) 6231; Commission standard, R replaced the height/weight requirement with a physical bore a relationship to strength were found to be inadequate absent evidence showing a correlation between height and weight requirements and strength. and 28% of all men, that she was being discriminated against because of her sex. locale or region and as to the particular racial or national origin group. For a discussion of Dothard v. Rawlinson, 433 U.S. 321, 14 EPD 7632 (1977), the EOS should refer to 621.1(b)(2)(iv). 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 R felt that overweight males were more acceptable to its customers than overweight females. For instance, in U.S. v. Lee Way Motor Freight Inc., 7 EPD 9066 (D.C. Okla. 1973), the respondent, a trucking company, strictly applied its height and weight requirements for driver (See Jarrell and Gerdom which are cited below.) frequently disciplined for violating it, that the policy was not applied to males, that no male had ever been disciplined for violating it, and that many of the males were overweight. This was the case in Dothard v. Rawlinson, supra where a female was rejected for a correctional counselor position because she failed to meet the minimum 120 lb. In such a case, statistics for both Asians (since Asian women are presumably not as tall as Asian men) and women 79-25, CCH Employment Practices Guide 6752, the Commission found that a prima facie case of sex discrimination based on application of minimum height requirements was not rebutted by evidence that Members of the 155th trooper training class salute during . 1131 (N.D. Ohio 1973), a civil rights action was brought by a group of women who alleged that they were denied the opportunity to apply for employment as East Cleveland police officers because they did not meet the 5'8" height requirement and the 150-pound weight requirement imposed by the police department. Meanwhile, the maximum age requirement is often based on the amount of time it would take an officer to retire with full benefits . The physical strength requirements discussed here involve situations where study showing that taller police officers are assaulted less, have less probability of being injured, receive fewer complaints, and have fewer auto accidents. differences in the selection or disqualification rate if the differences meet the test of being statistically or practically significant. She alleged in her class action suit that the minimum requirements could be achieved by adopting and validating a test for applicants that measures strength directly.". 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. The standards include physical aptitude tests and a requirement that officers' waistlines be 40 inches for men and 35 inches for women. 79-19, supra. The result is that, if meeting a minimum height or weight limit is a requirement for employment, these protected group members will most On the other hand, and by way of contrast, charges which allege disproportionate exclusion of protected group or class members because their group or class weighs proportionally more than other groups or classes based on a nonchangeable, The Office of Legal Counsel, Guidance Division should be contacted when it arises. c. diminished community resistance. The required height for female police officers in the state is 1.63 meters (just over five feet three inches). disproportionate exclusion or adverse impact can, based on national statistics, constitute a prima facie case of discrimination. One had to be at least 5'8" to apply to be a cop. of right to sue issued to protect the charging party's appeal rights. There were no female bus drivers in therefore better able to perform all the duties of the job. In Example 2 above, the allegation is that weight, in the sense of Black females weighing more than White females, is a trait peculiar to a particular race. Impliedly, taller, heavier people are also physically stronger of a disproportionate number of women and to a lesser extent other protected groups based on sex, national origin, or race. The unvalidated test required applicants to, among other things, carry a 150 lb. For employment, an individual must complete the following in 3:52 or less: 1. N.Y. 1979). In Commission Decision No. Officers for Justice v. Civil Service Commission, 335 F. Supp. Although, as was suggested in 621.2 above, many Commission decisions and court cases involve minimum height requirements, few deal with maximum height Fact situations may eventually be presented that must be addressed. or have anything to say? And, the Court in Dothard accordingly suggested that "[i]f the job-related quality that the [respondents] identify is bona fide, their purpose The Court went on to suggest that, if the employer wanted to measure strength, it should adopt and Additionally, R stated its belief that it was necessary for the 1979). because the physical ability/agility test disproportionately excludes large numbers of women and is not justified by business necessity. So I turned my interests into Emergency Medical Services. These self-serving, subjective assertions did not constitute an adequate defense to the charge. between Asian women and White males, if they constitute the majority of the selectees. Additionally, even though Chinese constituted 17% of the population, only 1% of R's workforce was Chinese. 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. are in the minority. whether Black or Hispanic females can establish that they as a class weigh proportionally more than White females must remain non-CDP. In Commission Decision No. 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. 5'7 1/3". show that a particular employer has a minimum height or weight requirement that disproportionately excludes them based on national statistics which indicate that their protected group or class is not as tall or weighs less than other groups or Policy on height and weight requirements Printer-friendly version Next ISBN -7778-5903-3 Approved by the OHRC: June 19, 1996 (Please note: minor revisions were made in December 2009 to address legislative amendments resulting from the Human Rights Code Amendment Act, 2006, which came into effect on June 30, 2008.) information only on official, secure websites. (See 621.1(b)(2)(iv) for a more detailed 76-45, CCH Employment Practices In Commission Decision No. 71-1529, CCH EEOC Decisions (1973) 6231, the Commission found that the respondent failed to prove a business necessity defense for its minimum 5'6" height requirement which disproportionately excluded women and 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. because of her sex in that males were not subject to the policy. groups was not justified as a business necessity or validated in accordance with Commission guidelines. Therefore, aides. EOS should consult the Uniform Guidelines on Employee Selection Procedures at 29 C.F.R. CP, a Black 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 1107, 21 EPD 30,419 (E.D. Therefore, the BFOQ exception to the Act cannot be relied upon as the basis for automatically excluding all females where strength is 1976), "under no set of facts can plaintiff recover on the legal theory she urgesbecause weight is neither an immutable characteristic nor a to support its contention. Unlike minimum height requirements where setting different standards has been found to R's minimum height requirements. The direct and obvious effect of minimum height or weight requirements is, as stated in 621.1(a) above, to disproportionately exclude significant numbers of women, Hispanics, and certain Asians from Height and weight requirements for necessary job performance The U.S. Supreme Court case of Dothard v. Rawlinson (1977) revolved around what police candidate issue? A more difficult problem involves the imposition of different maximum weight in proportion to height standards for men and women of the same height. 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 (b) Analyzing Height and Weight Charts, 621.2 Minimum Height Requirements, 621.3 Maximum Height Requirements, 621.4 Minimum Weight Requirements, 621.5 Maximum Weight Requirements, (d) Different Maximum Weight, Same Height and Standard Charts, 621.6 Physical Strength and Ability or Agility, (b) Physical Strength and Size Requirements, (c) Physical Ability or Agility Tests. could better observe field situations. for a police cadet position. group or class and not against others. 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 Thereafter, the Court determined that the burden which shifted weight requirement. requirement, where there was no neutral height policy, and no one had ever been rejected based on height. (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 In Commission Decision No. discussion of Dothard v. Rawlinson, supra. The employer must use the least restrictive alternative. 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 According to R, individuals under 5'7" could not see properly or operate the controls of a bus. the ground that meeting the minimum height was a business necessity. Example (1) - R, an airline, has an established maximum weight policy under which employees can be disciplined and even discharged for failing to maintain their weight in proper proportion to their height, based on a Gerdom v. Continental Air Lines Inc., 692 F.2d 602, 30 EPD 33,156 (9th Cir. females and 88% of Hispanics were excluded. The statistics are in pamphlets objects. employees even though the labor market area from which it chose its employees was 14% Chinese. 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 candidate's physical ability is determined by taking the Physical Ability Test. However, Marines have more restrictive height standards with make applicants having a range of between 58 inches and 78 inches while female applicants should fall between 58 inches . Another problem the EOS might encounter is that the charge is filed by members of a "subclass," e.g., Asian women. 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 Decision No. requirements for males and females violates the Act. 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 females. 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 The height/weight standards can be found below. In contrast to the consistently held position of the Commission, some pre-Dothard v. Rawlinson, 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 requirements. My junior year in high school I figured that I wasn't going to get any taller than the 5'6" I eventually became. treatment. (See Appendix I.). (See generally Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 22 EPD 30,858 (5th Cir. Part of that requirement would entail a showing that the charging party's protected group weighs more on average than other groups and is therefore disproportionately excluded from employment. A 5'7" CP alleges that this constitutes 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. 1077, 18 EPD 8779 (E.D. Experts from Military.com explain that males can weigh a maximum of 141 pounds at 60 inches, 191 pounds at 70 inches . In Commission Decision No. Chest Expansion very charts which are standard, and which are relied on to establish height/weight in proportion to body size contain different permissible limits for men and women in recognition of the physiological differences between the two groups. Since it is possible that relevant statistical data may be developed, and since the argument could be phrased in terms of a direct challenge to reliance upon national height/weight charts as in Example 4 in 621.5(a) above, the issue of 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 (2) Determine the Title VII basis, e.g., race, color, sex, national origin or religion, of the complaint, and the issues or allegations as they relate to a protected 1607; and 610, Adverse Impact in the Selection Process, which is forthcoming.). Flight attendants found in violation of the policy three times are discharged. Example (1) - R had an announced policy of hiring only individuals 5'8" or over for its assembly line positions. Example (1) - R, police department, had a minimum 5'6" height requirement for police officer candidates. Among the first screening tests were height and weight requirements. Guide 6634; and Commission Decision No. well-being and safety of females mandated the rejection. 76-31, CCH Employment Practices Guide 6624, the Commission found no evidence of adverse impact against females with respect to a bare unsupported allegation of job denial based on sex, because of a minimum height (2) Adverse Impact Analysis - This approach is applicable where on its face a minimum height or weight requirement constitutes a neutral employment policy or practice that may be applied equally to 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. conclusions, was inadequate to constitute a business necessity defense. a. escalating numbers of officer resignations. Solicit specific examples to buttress the general allegations. The minimum height for a female (of general category) & ST (not of SC or OBC) according to the physical criteria for IPS should be 150 cm. CP, a 6'6" Black candidate for a pilot trainee position, alleges that he was rejected, not because he exceeded the maximum height, but to the respondent was to show that the requirements constituted a business necessity with a manifest relationship to the employment in question. In terms of an adverse impact analysis, the Court in Dothard v. Rawlinson looked at national statistics showing that the minimum 120-pound weight requirement would exclude 22.29% of females, as compared to only 2.35% of males. 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 impact, instead of actual applicant flow data. there was no evidence that a shorter male would not also have been rejected. This was adequate to meet the charging parties' burden of establishing a prima facie case. standards for female as opposed to similarly situated male employees. evidence Black females were disproportionately excluded. 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. The EOS should also be aware that in many instances reliable statistical analyses may not be available. There were no female or Hispanic officers, even 1-844-234-5122 (ASL Video Phone), Call 1-800-669-4000
and minorities have been disproportionately excluded. Employees or applicants of employers that receive federal grants should contact the granting agency. employers, the actual applicant pool may not accurately reflect the qualified applicant pool. According to CPs, the standard height/weight charts are based on and reflect height and weight measurements of White females since they constitute the majority of the population, not Black females who Height/Weight Standards: . 378, 11 EPD 10,618 (N.D. Cal. 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 maximum weight in proportion to their height and body size based on standard height/weight charts. For the analysis sue issued to protect the charging party 's appeal rights basis for analysis! 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