Lanning v. Southeastern Pennsylvania Transportation Authority

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

10-15-2002

Lanning v. SEPTA

Precedential or Non-Precedential: Precedential

Docket No. 01-1040

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation

"Lanning v. SEPTA" (2002). 2002 Decisions. Paper 649.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/649

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

Filed October 15, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1040

CATHERINE NATSU LANNING; ALTOVISE LOVE;

BELINDA KELLY DODSON; DENISE DOUGHERTY;

LYNNE ZIRILLI

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY ("SEPTA"); RICHARD EVANS, Individually and

in his official capacity as Chief of SEPTA

Police Department

(D.C. Civil No. 97-cv-00593)

UNITED STATES OF AMERICA

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY

(D.C. Civil No. 97-cv-01161)

CATHERINE NATSU LANNING; ALTOVISE LOVE; BELINDA

KELLY DODSON; DENISE DOUGHERTY and

LYNNE ZIRILLI,

Appellants

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Nos. 97-cv-00593 and 97-cv-01161)

District Judge: Honorable Clarence C. Newcomer

Argued: February 11, 2002*

Before: ROTH, McKEE and BARRY, Circuit Judges .

(Filed October 15, 2002)

Jules Epstein, Esquire

Kairys, Rudovsky, Epstein,

Messing & Rau, LLP

924 Cherry Street, Suite 500

Philadelphia, PA 19107

Michael Churchill, Esquire (Argued)

Public Interest Law Center

of Philadelphia

125 South 9th Street, Suite 700

Philadelphia, PA 19107

Counsel for Appellants

Saul H. Krenzel, Esquire (Argued)

Saul H. Krenzel & Associates

42 South 15th Street

The Robinson Building, Suite 800

Philadelphia, PA 19102

Counsel for Appellee

Terry L. Fromson

Women’s Law Project

125 South 9th Street, Suite 300

Philadelphia, PA 19107

_________________________________________________________________

* This matter was originally heard on February 12, 2002 before Judges

Mansmann, McKee, and Barry. Because Judge Mansmann died prior to

an opinion being rendered, the Panel was reconstituted to include Judge

Roth, and the appeal was submitted.

2

Sharyn A. Tejani

Feminist Majority Foundation

National Center for Women

& Policing

1600 Wilson Boulevard, Suite 801

Arlington, VA 22209

Counsel for Amici Curiae

OPINION OF THE COURT

BARRY, Circuit Judge.

In Lanning v. Southeastern Pennsylvania Transp. Auth.,

181 F.3d 478 (3d Cir. 1999) (hereafter "Lanning I"), we held

that "under the Civil Rights Act of 1991,1 a discriminatory

cutoff score on an entry level employment examination

must be shown to measure the minimum qualifications

necessary for successful performance of the job in question

in order to survive a disparate impact challenge." 181 F.3d

at 481. We found that the District Court did not employ

this standard, which was implicit in Griggs v. Duke Power

Co., 401 U.S. 424 (1971), and incorporated by the Act, and,

thus, vacated the judgment of the District Court and

remanded the appeal for the Court to determine whether

the employer, the Southeastern Pennsylvania

Transportation Authority ("SEPTA"), had carried its burden

of establishing that its 1.5 mile run within twelve minutes

measures the minimum aerobic capacity necessary to

perform successfully the job of a SEPTA transit police

officer. Id. at 494. We left it to the discretion of the District

Court to allow the parties to expand the record in keeping

with our newly-announced standard.

Because we conclude that SEPTA produced more than

sufficient competent evidence to support the finding that a

pre-hire, pre-academy training aerobic capacity of 42.5

mL/kg/min measures the minimum qualifications

necessary for successful performance as a SEPTA transit

police officer and has, thus, justified the conceded

_________________________________________________________________

1. 42 U.S.C. S 2000e-2(k).

3

disparate impact on female candidates by showing business

necessity, we will affirm the judgment of the District Court

in favor of SEPTA. We have jurisdiction pursuant to 28

U.S.C. S 1291.2

We clearly do not write on a clean slate. The District

Court conducted a twelve-day bench trial in January of

1998 after which it rendered a 162-page opinion detailing

378 findings of fact and 107 conclusions of law. Lanning v.

Southeastern Transp. Auth., 1998 WL 341605 (E.D. Pa.

June 25, 1998). On appeal, we, too, rendered a lengthy

opinion with a lengthy dissent. To be sure, the majority

opinion spent much time explaining how the standard

announced therein came to be, but that opinion, and the

dissent, discussed much more, including why SEPTA’s

concern over public safety caused it to modify its hiring

requirements, the history of this litigation, and key pieces

of evidence. On remand, the District Court conducted a

five-day hearing, after which it rendered a 69-page decision

detailing yet another 153 findings of fact and 34

conclusions of law. Lanning v. SEPTA, 2000 WL 1790125

(E.D. Pa. Dec. 7, 2000).

So much has been written and so little remains for

determination that we do not believe it necessary to repeat

what has been said before or, as does the dissent here,

poke a hole here or there in one or more of the District

Court’s extensive findings of fact and conclusions of law.

There is, however, one undisputed fact which bears

repetition because it sets the stage for what is to follow: it

is undisputed that SEPTA management wanted to improve

the crime fighting ability of SEPTA’s force and the fitness of

its officers. As Judge Weis explained in Lanning I:

Concerned about its inability to control crime on its

property, SEPTA instituted a three-pronged attack on

_________________________________________________________________

2. This case was consolidated before the District Court with United States

v. Southeastern Pennsylvania Transportation Authority (D.C. Civ. No. 97-

cv1161). The United States filed a notice of appeal from the final

judgment now under review, with the appeal docketed at No. 01-1297.

On October 1, 2001, the United States moved to dismiss its appeal

pursuant to Fed. R. App. P. 42(b). That motion was granted on October

12, 2001.

4

the problem. It added a substantial number of officers,

implemented a zone method of patrol, and adopted

standards to improve the generally poor physical

condition of its officers. Unlike many metropolitan

police departments, SEPTA officers are deployed alone

and on foot, engaging in physical activities more

frequently than other law enforcement agencies.

The patrol zones present significant variations in

conditions that affect the physical exertion of officers in

the performance of their duties. Zone One, for example,

has a climb of 30 to 50 steps from street level. Zone

Three, a mixture of above and below-ground locations,

borders a large shopping mall, featuring retail theft and

pursuits that lead into the SEPTA transit system. Zone

Five, which includes sports complexes, is characterized

by long distances between stations. Zone Six includes

the Temple University area, a scene of frequent crimes

against students.

SEPTA officers must occasionally ask for assistance

from their comrades in other zones. These calls are

divided into two categories, "officer assists" and "officer

backups." An "assist" requires officers to respond

immediately. Often the only method available to get to

the scene quickly is a run of five to eight city blocks.

An officer responding to an "assist" must preserve

enough energy to deal effectively with a situation once

arriving on the scene. SEPTA averages about 380

running assists per year. "Backups" are not as critical

as "assists," so officers generally use a"paced jog."

SEPTA averages about 1,920 "backups" annually.

181 F.3d at 494-95 (Weis, J., dissenting).

We also reiterate what we explicitly stated in Lanning I:

the business necessity standard takes public safety into

consideration. 181 F.3d at 490 n.16. We observed, in

Lanning I, that Congress viewed the "more liberal test for

business necessity" adopted in Wards Cove Packing Co.,

Inc. v. Atonio, 490 U.S. 642 (1989), as a significant

departure from Griggs and intended, when it enacted the

Civil Rights Act of 1991, to endorse the business necessity

standard enunciated in Griggs and not the Wards Cove

5

interpretation of that standard. We, thus, considered, in

Lanning I, only Griggs and its pre-Wards Cove progeny.

Nonetheless, we noted:

[T]o the limited extent that the Supreme Court’s pre-

Wards Cove jurisprudence instructs that the public

safety is a legitimate consideration, application of the

business necessity standard to SEPTA is consistent

with that jurisprudence because the standard itself

takes public safety into consideration. If, for example,

SEPTA can show on remand that the inability of a

SEPTA transit officer to meet a certain aerobic level

would significantly jeopardize public safety, this

showing would be relevant to determine if that level is

necessary for the successful performance of the job.

Clearly a SEPTA officer who poses a significant risk to

public safety could not be considered to be performing

his job successfully. We are accordingly confident that

application of the business necessity standard to

SEPTA is fully consistent with the Supreme Court’s

pre-Wards Cove jurisprudence as required by the Act.

181 F.3d at 491 n.16.

It is against this backdrop that we assess the sole issue

we caused to be resolved on remand: whether or not SEPTA

has proven that its 42.5 mL/kg/min aerobic capacity

standard measures the minimum qualifications necessary

for the successful performance of the job of SEPTA transit

police officers. The District Court concluded that the

answer was "yes," and that any lesser standard"would

result in officers . . . who were a danger to themselves,

other officers, and the public at large, [and] unable to

effectively fight and deter crime." Lanning 2000 WL

1790125, at *28 (Conclusion # 32). In the course of our

concluding that the Court’s conclusion was correct, we

have reviewed the relevant findings of fact under the clearly

erroneous standard and the District Court’s conclusions of

law under the plenary review standard. Newark Branch,

NAACP v. City of Bayonne, 134 F.3d 113, 120 (3d Cir.

1998); Lanning I, 181 F.3d at 484-85.

We start by noting that when this case was last before

us, we expressed concerns as to certain aspects of the

6

statistical studies upon which the District Court relied, and

we "encourage[d] the District Court to take a critical look at

these studies, if necessary, on remand." 181 F.3d at 493

n.21. In its second memorandum opinion, the District

Court noted that it had "indeed taken a second critical look

at these studies as suggested and once again reaffirm[ed]

their validity consistent with its prior extensive 160 plus

page memorandum opinion." Lanning, 2000 WL 1790125,

at *1 n.1. Significantly, after the five-day hearing on

remand, the District Court made additional findings of fact

that bolster its conclusion. As the following brief discussion

demonstrates, it is evident that the District Court’s findings

regarding the studies in this case were not clearly

erroneous.

In Lanning I, we were concerned that "the absolute

number of arrests or ‘arrest rates’ [in certain studies did]

not necessarily correlate with successful job performance."

181 F.3d at 492 n.21. While we continue to believe that a

"SEPTA officer should generally attempt to control a

situation without having to make an arrest," id., the

District Court found, based upon its review of the extensive

body of evidence before it, that "lost arrests have a

significant impact on the public safety" in the SEPTA

transit system. Lanning, 2000 WL 1790125, at *26. This

finding indicates that arrests do, in fact, correlate to

successful performance as a SEPTA transit police officer.

We also questioned whether certain studies

overemphasized the role of aerobic capacity in making

arrests, and whether other studies placed too much

emphasis on arrest rates for "serious crimes" given that,

historically, the bulk of SEPTA arrests has been for lesser

crimes. While not all SEPTA arrests are aerobic contests,3

nor are they always effectuated to apprehend "serious"

criminals,4 the District Court found that "[a]n inability to

_________________________________________________________________

3. Although there is some dispute over the precise percentage of arrests

that have required substantial aerobic exertion, the evidence shows that,

at the very least, around one in ten arrests, or ten percent, have so

required.

4. Arrests for "serious crimes" have similarly accounted for around one

in ten arrests.

7

proficiently perform any . . . task[ ] would compromise the

effectiveness of the SEPTA transit police." 2000 WL

1790125, at *24 (emphasis added). In essence, the Court

concluded what, to us, is now evident: a SEPTA transit

police officer must be ready and able to apprehend not just

the numerous sedentary, petty criminals, but also the fleet-

footed few who, from time to time, wreak serious harm on

the people of Philadelphia.5

A final concern mentioned in Lanning I involved the

statistical methods relied upon in some of SEPTA’s studies.

We noted, for example, that a study on arrest rates seemed

to be based on "disproportionately large numbers of officers

with an aerobic capacity over 42 mL/kg/min" and stated

that, if the correlation coefficient of the study was low, the

study would "be subject to close review." 181 F.3d at 492-

93 n.21 (citing 29 C.F.R. S 1607.14(B)(6)). Upon further

review, we are satisfied that the correlation coefficient was

sufficiently high to be statistically significant.

We have also examined the other relevant studies in this

case for possible deficiencies and conclude that they were

sufficiently reliable and in keeping with sound principles of

statistical analysis. As scientists well know, it is not

uncommon for competent statisticians to interpret data in

different ways, sometimes reaching different results. While

we concede that there may be some room for disagreement

-- as there often is in the realm of statistical analysis -- the

District Court carefully considered the relevant studies and

credited them. Under the standard that governs our review,

we conclude that the District Court’s findings of fact were

not clearly erroneous.

And so we move more directly to the critical issue before

us -- the minimum qualifications necessary in terms of

_________________________________________________________________

5. The District Court also credited studies which indicate that once

SEPTA officers reach suspects, they often must engage in physical

struggles which require substantial aerobic capacity. The Court further

noted that SEPTA officers "must engage in at least one aerobic encounter

during the course of his or her duties every month, either as an

emergency assist or running backup." 2000 WL 1790125, at *24. These

findings support the conclusion that aerobic capacity is an important

factor in successfully making arrests.

8

aerobic capacity to successfully perform as a SEPTA transit

police officer. Neither the District Court nor the parties

have explicitly defined the key phrase "minimum

qualifications necessary," but a definition is implicit in the

parties’ respective arguments and the District Court’s

acceptance of that of SEPTA. SEPTA argued that the run

test measures the "minimum qualifications necessary"

because the relevant studies indicate that individuals who

fail the test will be much less likely to successfully execute

critical policing tasks. For example, the District Court

credited a study that evaluated the correlation between a

successful run time and performance on 12 job standards.

The study found that individuals who passed the run test

had a success rate on the job standards ranging from 70%

to 90%. The success rate of the individuals who failed the

run test ranged from 5% to 20%.6 The District Court found

that such a low rate of success was unacceptable for

employees who are regularly called upon to protect the

public. In so doing, the District Court implicitly defined

"minimum qualifications necessary" as meaning"likely to

be able to do the job."

Plaintiffs argued, however, that within the group that

failed the run test, significant numbers of individuals would

still be able to perform at least certain critical job tasks.

They argued that as long as some of those failing the run

test can do the job, the standard cannot be classified as a

"minimum." In essence, plaintiffs proposed that the phrase

_________________________________________________________________

6. The District Court cited numerous other studies that offer similar

results. In one such study, 80% of those passing SEPTA’s run test met

minimum job standards, while only 33% of those failing did. Another

study showed that 84% of those passing the test could carry out an

"emergency assist," while only 14% of the failing group were able to do

so. The consideration that the District Court gave to these studies lays

to rest plaintiffs’ claim that the cutoff time was merely the product of the

judgment of SEPTA experts. As we noted in Lanning I, a "business

necessity standard that wholly defers to an employer’s judgment as to

what is desirable in an employee . . . is completely inadequate." Id. at

489 (emphasis added). The factual record here, however, clearly

demonstrates that SEPTA experts set the run time cutoff at 12 minutes

for objective reasons, with the studies showing that the projected rate of

success of job applicants dropped off markedly for those who ran 1.5

miles in over 12 minutes.

9

"minimum qualifications necessary" means "some chance of

being able to do the job." Under this logic, even if those

failing the test had a 1% chance of successfully completing

critical job tasks, the test would be too stringent.

We are not saying, as our distinguished brother in

dissent suggests we are saying, that "more is better." While,

of course, a higher aerobic capacity will translate into

better field performance -- at least as to many job tasks

which entail physical capability -- to set an unnecessarily

high cutoff score would contravene Griggs. It would clearly

be unreasonable to require SEPTA applicants to score so

highly on the run test that their predicted rate of success

be 100%. It is perfectly reasonable, however, to demand a

chance of success that is better than 5% to 20%. 7 In sum,

SEPTA transit police officers and the public they serve

should not be required to engage in high-stakes gambling

when it comes to public safety and law enforcement. SEPTA

has demonstrated that the cutoff score it established

measures the minimum qualifications necessary for

successful performance as a SEPTA officer.

The dissent concedes that SEPTA has the right to

improve its workforce and does not suggest that that is not

being done. Instead, the dissent concentrates its efforts on

why, in its view, the 42.5 mL/kg/min aerobic capacity

cutoff score as an application requirement is wanting,

concluding that "[a]fter all has been said and done, . . . one

unassailable fact remains. The 42.5 mL/kg/min aerobic

capacity [cutoff] is not required of transit officers before or

after they begin policing." Dissent at 34. As for the "before,"

we reject without more the argument that applicants--

male and female -- should not be tested until they have

graduated from the police academy, perhaps two and one-

half years after they first applied to SEPTA; indeed, the

dissent recognizes but relegates to a footnote the increase

in SEPTA’s costs and the uncertainty in planning and

recruitment this would occasion. As for the "after," all

incumbents -- male and female -- are now required to take

a physical fitness test every six months, another step

_________________________________________________________________

7. Even in other studies where those failing the test had higher predicted

rates of success on job tasks, the rates were still only around 33%.

10

toward improving the workforce.8 In this connection, it

bears mention that SEPTA is unable to discipline

incumbents who do not pass the test only because of the

patrol officers’ union’s challenge, sustained by an

arbitrator. With the union’s blessing, however, SEPTA offers

financial incentives to those officers who do pass.

One final note. While it is undisputed that SEPTA’s 1.5

mile run test has a disparate impact on women, it is also

undisputed that, in addition to those women who could

pass the test without training, nearly all the women who

trained were able to pass after only a moderate amount of

training. It is not, we think, unreasonable to expect that

women -- and men -- who wish to become SEPTA transit

officers, and are committed to dealing with issues of public

safety on a day-to-day basis, would take this necessary

step. Moreover, we do not consider it unreasonable for

SEPTA to require applicants, who wish to train to meet the

job requirements, to do so before applying in order to

demonstrate their commitment to physical fitness. The poor

physical condition of SEPTA officers prior to 1989

demonstrates that not every officer is willing to make that

commitment once he or she is hired. In any event, the

multi-agency training which SEPTA candidates receive does

not provide sufficient physical fitness training to bring an

unqualified candidate up to the physical standard

requirements.

The judgment of the District Court will be affirmed. 9

_________________________________________________________________

8. Of course, yet another step in improving the performance of

incumbents would be to require a physical fitness test not only upon

application but also immediately prior to entry on duty.

9. We have considered the parties’ other assertions of error and find

them unavailing.

11

McKEE, Circuit Judge dissenting.

In Lanning v. Southeastern Pennsylvania Transp. Auth.,

181 F.3d 478 (3d Cir. 1999) (hereafter, "Lanning I"), we held

that "under the Civil Rights Act of 1991, a discriminatory

cutoff score on an entry level employment examination

must be shown to measure the minimum qualifications

necessary for successful performance of the job in question

in order to survive a disparate impact challenge." 181 F.3d

at 481. The Southeastern Pennsylvania Transportation

Authority ("SEPTA") requires all applicants for the position

of Transit Police Officer to be able to run 1.5 miles in twelve

minutes, which translates into an aerobic capacity of 42.5

mL/kg/min. Despite the numerous opinions that have been

written in this suit, and an involved and lengthy bench trial

that was followed by additional testimony on remand, I do

not believe SEPTA is any closer than when we started to

demonstrating that the pre-training 42.5 mL/kg/min cutoff

-- a standard that disqualifies 90% of female applicants

from even beginning training -- satisfies the business

necessity standard. Accordingly, I respectfully dissent from

the opinion of my colleagues.

I.

Before I explain why SEPTA has not met its burden and

why we should therefore reverse the District Court’s

decision on remand, see Lanning v. SEPTA, 2000 WL

1790125 (E.D. Pa. Dec. 7, 2000) (hereafter "Lanning II"), I

think it important to dispose of one concern at the outset.

My disagreement with my colleagues is not about public

safety or the importance of safeguarding SEPTA’S ridership.

No rational or informed person can seriously doubt the

importance of qualified police officers to a large urban

transit system. Yet, on remand, the District Court

expressed the following concern after summarizing much of

the evidence that had been offered in support of the 42.5

mL/kg/min aerobic capacity cutoff:

Significant gains in apprehensions and deterrence such

as those demonstrated here are to be encouraged and

supported by the federal courts. The Court simply will

not condone dilution of readily obtainable physical

12

abilities standards that serve to protect the public

safety in order to allow unfit candidates, whether they

are male or female, to become SEPTA transit police

officers.

Lanning II, 2000 WL at * 25 (E.D. Pa. Dec. 7, 2000).

Similarly, the Majority states: "SEPTA transit police officers

and the public they serve should not be required to engage

in high-stakes gambling when it comes to public safety and

law enforcement." Majority Op. at 10. I can not stress too

strongly that the issue is not now, and never has been,

whether SEPTA must jeopardize public safety in order to

eliminate the disparate impact that SEPTA concedes the

42.5 mL/kg/min standard visits upon female applicants.

Rather, the issue continues to be whether SEPTA can

justify that cutoff under the business necessity test that is

incorporated into Title VII by the 1991 Civil Rights Act.1

Since "the business necessity standard takes public safety

into consideration," Majority Op. at 5 (citing Lanning I, 181

F.3d at 478, 490) applying it here will not endanger the

public.

It is uncontested that plaintiffs have established a prima

facie case of job discrimination because the 42.5

mL/kg/min cutoff has a disparate impact on females

applying to be SEPTA police officers. Dothard v. Rawlinson,

433 U.S. 321, 329 (1977). However, that discrimination is

permissible if the aerobic capacity represented by that

cutoff is "job related for the position in question and

_________________________________________________________________

1. As the majority notes, in Lanning I, we held that the Civil Rights Act

of 1991, codified the Supreme Court’s holding in Griggs v. Duke Power

Co., 401 U.S. 424 (1971). Under that holding, the employer had the

burden of establishing that its "discriminatory cutoff score . . .

measure[s] the minimum qualifications necessary to perform

successfully the job in question." Lanning I , 181 F.3d at 489. We also

specifically held that studies demonstrating "that the higher an officer’s

aerobic capacity, the better the officer is able to perform the job," i.e.

that "more is better," have "no bearing on the appropriate cutoff to reflect

the minimal qualifications necessary to perform successfully the job in

question." Id. at 492. We noted that such a study "may suffice . . . in

only the rarest of cases where the exam tests for qualities that fairly

represent the totality of a job’s responsibilities." Id. at 493 n.23

(emphasis added).

13

consistent with business necessity. . . ." 42 U.S.C. S 2000e-

2(k). SEPTA may therefore justify its discriminatory cutoff

by demonstrating that anything less jeopardizes public

safety. We explained this in Lanning I. There, we stated:

If, for example, SEPTA can show on remand that the

inability of a SEPTA transit officer to meet a certain

aerobic level would significantly jeopardize public

safety, this showing would be relevant to determine if

that level is necessary for the successful performance

of the job. Clearly a SEPTA officer who poses a

significant risk to public safety could not be considered

to be performing his job successfully.

Lanning I, 181 F.3d at 490. Accordingly, any suggestion

that "federal courts" are advocating that diminished public

safety is the social price that we must pay to eliminate

gender discrimination is as unfortunate as it is inaccurate

and misleading. Despite continuing protestations to the

contrary, SEPTA has simply not demonstrated the business

necessity of its cutoff though it has had several

opportunities to do so. The implication that changing

SEPTA’s cutoff would endanger the public is therefore

nothing more than the proverbial red herring. As I shall

discuss in greater detail below, the effect of SEPTA’s aerobic

capacity standard on public safety is purely conjectural.

Moreover, as I shall also explain, the objective evidence

on this record should weigh far more heavily in the balance

than the conjecture that SEPTA’s arguments rest upon.

That objective evidence consists of the job performance of a

female police applicant who was mistakenly hired although

she did not meet the aerobic cutoff when she applied,

SEPTA’s failure to require officers to meet the standard

when they first go on duty as police officers, and the fact

that incumbent police officers have regularly failed to meet

the 42.5 ml/kg/min cutoff with no demonstrable impact on

public safety. Given this record, SEPTA can not shield its

unnecessarily exclusionary job requirements from judicial

review by relying on a threat to public safety where none

has been demonstrated.

Moreover, even if SEPTA had demonstrated the necessary

correlation between public safety and the 42.5 mL/kg/min

14

cutoff, "the plaintiffs may still prevail if they can show that

an alternative employment practice has a less disparate

impact and would also serve the employer’s legitimate

business interest." Id. at 485 (quoting Albemarle Paper Co.

422 U.S. 405, 425 (1975)). In Lanning I, we suggested

several alternatives that could address SEPTA’s justifiable

concern about the fitness of its police force while mitigating

or eliminating the discriminatory impact of the 42.5

mL/kg/min cutoff.

SEPTA could [for example]: 1) abandon the test as a

hiring requirement but maintain an incentive program

to encourage an increase in the officers’ aerobic

capacities; 2) validate a cutoff score for aerobic

capacity that measures the minimum capacity

necessary to successfully perform the job and maintain

incentive programs to achieve even higher aerobic

levels; or 3) institute a non-discriminatory test for

excessive levels of aerobic capacity . . . that would

exclude 80% of men as well as 80% of women through

separate aerobic capacity cutoffs for the different sexes.

Lanning I, 181 F.3d at 490.

SEPTA currently uses the aerobic cutoff as an incentive

rather than a disqualifier for incumbent transit police as is

suggested by the first alternative. There is no evidence that

public safety has been compromised by doing that.

Therefore, I fail to see why (assuming that everything

SEPTA says about the necessity of the standard is true)

SEPTA’s objectives can’t be achieved by offering incentives

for applicants just as SEPTA now does for incumbent police

officers.

There is an even simpler and more effective option that

would also further SEPTA’s objective more than the current

method of using the aerobic cutoff. SEPTA could impose the

cutoff as a condition of graduating from the police academy

rather than as an application qualifier. The period between

application and actually becoming a transit police officer is

sometimes as long as two and one-half years. If this

performance standard is as important to the work of a

transit police officer as SEPTA claims, the quality of

SEPTA’s police force would only be enhanced, not

15

weakened, by requiring officers to meet it when they

graduate from the academy.

That was one of our suggestions and it is one of the

plaintiffs’ proposals. See Lanning I, 181 F.3d at 504. That

proposal is eminently reasonable, it has several benefits

over SEPTA’s current application process, and it is a

practice that other police forces use.2 In fact, the more vital

the 42.5 mL/kg/min cutoff is, the more logical it is to

enforce it upon graduation from the police academy rather

than when one applies a year or two earlier. Doing so would

have a less discriminatory impact because it would allow

females to complete the application process if they could

not run 1.5 miles in the required time, but it would require

them to train to the extent necessary to meet the 42.5

mL/kg/min cutoff before starting on duty. It would also be

more consistent with insuring that all officers satisfy the

standard that SEPTA claims to be the minimum necessary

for the public’s safety.3

The fact that SEPTA does not retest before a new recruit

begins patrolling should cause us to be very skeptical about

SEPTA’s claim that the 42.5 mL/kg/min cutoff is necessary

to public safety. That skepticism is reinforced by several

undisputed facts on this record.

Yet, on remand, the District Court never even mentioned

these options and it appears that SEPTA never attempted to

explain why these less discriminatory (and more effective)

alternatives would not adequately address any legitimate

concerns.

_________________________________________________________________

2. Cf. Brief of Amici Curiae at 13 (noting that in recognition of training

interval, some agencies, such as New York State Troopers, have different

fitness requirements for entrance into, and graduation from, the training

academy).

3. I realize that this would increase SEPTA’s costs and introduce a new

level of uncertainty in planning and recruiting because SEPTA would be

less certain of how many of its recruits will ultimately survive the

academy and become SEPTA officers. However, common sense suggests

that such a "washout" factor already exists because it is a fair

assumption that not everyone who begins training ultimately graduates

and accepts a position with SEPTA. These are considerations that the

District Court never factored into its analysis of business necessity.

16

II.

The District Court’s analysis never focused on the fact

that the 42.5 mL/kg/min cutoff is enforced when someone

applies for the position of a SEPTA police officer, not when

an offer of employment is extended or when an applicant

graduates from the police academy and actually goes on the

job. All of the studies the District Court relied upon purport

to correlate success in job-related tasks to fitness level at

the time of the task, not at some time prior to hiring and

training. However, an offer to hire may be extended as

much as two and one-half years after the aerobic running

test is administered and the 42.5 mL/kg/min cutoff

applied, and there is absolutely no retest before beginning

as a SEPTA officer. See Lanning v. Southeastern

Pennsylvania Transp. Auth., 1998 WL 341605 (E.D. Pa.

June 25, 1998), and Findings of Fact and Conclusions of

Law therein (hereafter "Initial FOF "),PP 150-151.

Accordingly, there is no way for SEPTA to know if even a

male incumbent police officer has the aerobic capacity

deemed so necessary to the job when he actually begins

patrolling. Common sense establishes that no matter how

quickly and enthusiastically an applicant may be able to

scamper one and one-half miles when initially tested, "ole

man time"4 may have reduced the applicant’s aerobic

output beneath the 42.5 mL/kg/min cutoff at the very

point that SEPTA claims it is necessary for public safety.

There has been no showing - and no finding by the

District Court - that fitness level at the time of application

is a reliable proxy for fitness level on the job over the

ensuing years. On the contrary, as the majority implicitly

acknowledges, being able to run 1.5 miles in 12 minutes

prior to training is neither a necessary nor a sufficient

condition for being able to run that fast (and consequently,

according to SEPTA’s theory, being able to perform various

police tasks) thereafter.

On the one hand, the majority concedes that "nearly all

the women who trained were able to pass after only a

moderate amount of training," Majority at 11, so the ability

_________________________________________________________________

4. Not to mention the possible intervening intake of pizzas, burgers, and

that extra helping of desert every now and then.

17

to pass without training is not a necessary prerequisite. On

the other hand, pre-hire fitness does not guarantee

continued fitness on the job. The failure to establish the

required nexus between fitness at the time of application

and fitness on the job is a major gap in SEPTA’s proof. My

colleagues in the Majority gloss over this gap noting that it

is "not unreasonable" to require women to train in advance,

"in order to demonstrate their commitment to physical

fitness." Majority at 11. However, it is undisputed that

SEPTA does not require applicants or incumbents to train

"in order to demonstrate their commitment to physical

fitness." There are two additional problems with the

Majority’s reliance on the relevance of applicants

demonstrating a commitment to fitness.

First, the District Court made no finding that applicants

who can run fast are more "committed" to physical fitness

(or even more likely to remain fit) than someone who may

exhibit greater endurance than required for the aerobic

cutoff, but not have the speed necessary to satisfy it.

Moreover, since running is only one of the physical

demands made of an applicant, focusing only on it may

ignore the commitment of an applicant who can do a

greater number of push-ups or sit-ups, or bench press

more weight than someone who can run 1.5 miles in 12

minutes.5

Second, since men are far more likely than women to be

able to pass the running test without training, this newly-

minted commitment rationale imposes an additional

discriminatory criterion -- viz, that women must possess a

demonstrated level of commitment not required of men.

Given the substantial physical advantage enjoyed by men,

a woman who runs 1.5 miles in just over 12 minutes may

thereby demonstrate more commitment to training and

fitness than a man who runs the course in just under 12

minutes or 12 minutes "flat." Yet, SEPTA enforces its cutoff

in a manner that would exclude the female in favor of the

male, despite the fact that the relative achievement level

_________________________________________________________________

5. The number of push-ups, and sit-ups an applicant can do is also

tested, as is the amount of weight that the applicant can bench press.

18

may demonstrate a greater commitment to fitness on the

part of the female.6

III.

Although the requirement of running 1.5 miles in 12

minutes and the corresponding 42.5 mL/kg/min cutoff may

not appear that daunting a requirement for someone who

exercises regularly and is in fairly good condition, it is

nevertheless more than certain branches of the United

States military demand of incumbents.7 I can understand

and appreciate SEPTA’s argument that its zone system, and

its reliance on foot patrols explains why the 42.5

mL/kg/min cutoff is more demanding than the standard

set for New York City Police. Differences between what is

required of SEPTA police and New York City transit police

perhaps rebut the testimony of Former New York City

Transit Police Chief, Michael O’Connor, as to the need for

SEPTA’s aerobic standard. He led a significant reduction of

crime in New York City’s transit system. When he testified

before the District Court as an expert witness in this suit

he emphatically rejected the concept of comparing police

officers’ running ability with that of fleeing felons as a job

requirement. SEPTA had argued that its officers must have

an aerobic capacity at least equal to that of the

"perpetrator" population SEPTA officers may have to chase.

Chief O’Connor disagreed. He testified: "[h]ow fast you run

is not a measure of how good a cop you are. It takes a lot

more than just running fast to be a good cop." 8

_________________________________________________________________

6. The use of differing cutoffs, corresponding to the differing average

aerobic capacities of men and women, was one of the less discriminatory

alternatives we suggested in Lanning I. This alternative was ignored by

the District Court.

7. The United States Army requires males ages 22-26 to run 2 miles in

16.36 minutes; the Navy requires males ages 20-29 to run 1.5 miles in

13.45 minutes and; the Marines require males ages 17-26 to run 3 miles

in 28 minutes. See Gordon Strong, Descriptive Comparisons of United

States Military Physical Fitness Programs, 2 Sport J. (1999), http://

www.thesportjournal.org/VOL2NO2/STRONG.HTM.

8. See J.A., Vol. III at A-725.

19

SEPTA’s own experience confirms this. Crime has been

reduced on SEPTA facilities even though SEPTA does not

require incumbent officers to achieve the 42.5 ml/kg/min

cutoff. This undermines SEPTA’s assertion about the

relationship between the aerobic cutoff and effective

policing, and it corroborates Chief O’Connor’s view of the

cutoff.

Although differences between New York City and

Philadelphia may cast doubt on the Chief ’s attempt to

assess the value of applying this cutoff to the Philadelphia

transit system, it does not explain why SEPTA insists upon

a more demanding standard than is required of young

people training for the Amy, Navy or Marines. Yet, SEPTA

argues that its standard is the minimum necessary for

public safety, and that it is necessary to screen out

applicants who fail to meet that standard without regard to

whether the standard will be attained after they are hired

and without regard to whether incumbent police officers

can meet it.

IV.

SEPTA’s insistence that the 42.5 mL/kg/min cutoff

satisfies the business necessity test is undermined by the

fact that it does not require its incumbent police officers to

meet that standard. Yet, there is nothing to suggest that

public safety has been jeopardized. SEPTA first

administered a running test in 1991. "SEPTA’s own internal

memoranda document that incumbent transit officers of all

ranks have failed SEPTA’s physical fitness test . . . ," Initial

FOF P 242, since SEPTA began testing.

One of plaintiff ’s trial exhibits purports to show that

62.20% of incumbent officers have failed the aerobic

capacity test since it was first administered in 1991. Initial

FOF P 245 (citing Plaintiff ’s Exhibit 106). The District Court

discounted the probative value of that evidence however,

because an individual officer would have been counted "a

number of times if this officer failed the test a number of

times." Id. The Court concluded, "[t]hus, this evidence is

not entitled to much weight." Id.

20

Nevertheless, even assuming that the 62.20% failure rate

is somewhat inflated because it fails to adjust for multiple

failures of individual incumbents, and even assuming that

the failure rate has decreased with time, nothing on this

record suggests the dramatic turn around one would have

a right to expect if meeting that standard is so necessary to

public safety, and SEPTA has the burden of proof here, not

plaintiffs.

It is uncontested that, despite SEPTA’s claim that officers

who can not meet the 42.5 mL/kg/min standard endanger

public safety, SEPTA has promoted officers who failed the

running test, and given commendations to others who

failed a component of that test. See Initial FOF 256-259. It

is also uncontested that SEPTA has never suspended,

reassigned, disciplined or demoted any officer "for failing to

perform the physical requirements of the job." Initial FOF

259.9 It has also promoted officers who could not meet the

standard. SEPTA’s policy of promoting candidates who fail

to demonstrate a 42.5 mL/kg/min aerobic capacity is

perplexing given the purported importance of that

performance criteria. The District Court noted:

SEPTA has promoted incumbent officers who have

failed some or all of the components of the physical

fitness test at any time. Since July 1994, the Chief of

SEPTA Transit Police Department has had the

authority to remove candidates from promotional lists

for failing to achieve their interim fitness goals. Despite

_________________________________________________________________

9. Although the District Court is certainly correct that an employer has

the right to improve its workforce, and is not bound by the standard of

its incumbents, a claim that a highly discriminatory standard that is not

required of incumbent police officers is the minimum necessary to

satisfactory job performance should be met with skepticism.

Cf. Scott v. City of Anniston, 597 F.2d 897 (5th Cir. 1979) ("Validation,

in general, requires a demonstration that ‘the qualifying tests are

appropriate for the selection of qualified applicants for the job in

question.’ ") (quoting Washington v. Davis , 426 U.S. 229 (1976)). In Scott,

the Fifth Circuit observed that the "evidence casts doubt on the validity

of the tests" where some individuals "who had satisfactorily performed

jobs were demoted after [failing] the written tests and others "who had

failed written tests performed satisfactorily when they were promoted

after passing a performance test." Id. at 902.

21

the authority to remove officers from the promotional

lists, no SEPTA officer has ever been removed from a

promotional list for failure to pass physical fitness

testing for incumbents.

Initial FOF 256. The court attempted to rationalize this

apparent contradiction and credit SEPTA with making some

effort to consider aerobic capacity when making promotions

by noting: "Nevertheless, only ten officers who have failed

their physical fitness tests have ever been promoted." Id.

However, as I have already noted, SEPTA has the burden of

proving "necessity." Accordingly, the fact that a relatively

small number of officers have been promoted while failing

to satisfy the cutoff is not nearly as probative as the fact

that 10 officers who failed were promoted with no resulting

impact on public safety. After all, SEPTA obviously believed

that those 10 officers could do their jobs effectively, and

adequately protect the public or it would not have promoted

any of them.

The District Court explained that SEPTA’s failure to

discipline transit police who could not meet the 42.5

mL/kg/min standard was due to a union challenge to

management’s unilateral imposition of that requirement on

incumbent officers. The union’s position was sustained by

an arbitrator. See Lanning II, 2000 WL 1790125 at *6.

Management responded by offering monetary rewards

whenever an incumbent officer "passed" the running test,

and by offering to pay for gym memberships to help

incumbent officers train to the level necessary to meet the

42.5 mL/kg/min cutoff. Id. Although the union’s objections

and the resulting arbitration explain why no incumbent

was fired for not meeting that cutoff, they don’t explain why

SEPTA has commended and promoted officers who are

purportedly so physically unfit that they are unable to

perform the minimum job tasks that are now supposed to

be so necessary to public safety. It also does not explain

why SEPTA could not offer female applicants who do not

meet that cutoff the same support it offers male incumbent

transit police officers.

The District Court concluded that:

The experiences SEPTA had with its incumbent officers

serves to further illustrate the importance of requiring

22

incoming officers to meet certain minimum fitness

standards, as SEPTA has much less ability to influence

its force once they become members of the collective

bargaining unit.

Lanning II, 2000 WL at * 6 n.5. Of course, this does not

explain why SEPTA does not retest applicants before

offering them a position, and it does not even begin to show

why the 42.5 mL/kg/min threshold is the minimum

necessary for public safety.

We are reminded that SEPTA initiated the policy of

retesting incumbent police officers every six months in

1991, but the manner in which the "policy" is administered

undermines SEPTA’s claim of public safety more than it

supports it. The District Court concluded that "[d]espite

this policy, there was evidence introduced at trial that

incumbents are not always retested every six months."

Lanning II. 2000 WL at * 6 (E.D. Pa. Dec. 7, 2000). Since

one’s job status is not affected by the outcome of the

retests, those examinations are merely an adjunct to the

system of rewards and encouragement employed for

incumbent officers. As I noted above, SEPTA has not

explained why it can not create a similar mechanism of

reward and encouragement for applicants who are

otherwise qualified to become police officers but can not

initially demonstrate an aerobic capacity of 42.5

mL/kg/min.

We are told of how crime in and around SEPTA property

has been significantly reduced despite the apparent

inability of many transit officers to meet the cutoff, and

SEPTA’s inability or unwillingness to enforce it.

Accordingly, I can only conclude that factors other than the

42.5 mL/kg/min cutoff are responsible for reducing the

levels of crime. Crediting the 42.5 mL/kg/min cutoff with

reducing crime while not requiring incumbents to meet it

totally ignores the other steps SEPTA took that explain the

reduction in crime. For example:

SEPTA initiated a complete overhaul of the police

department . . . . to make the subways on the SEPTA

system the "safest place in the city." This overhaul

included the announcement that transit police were to

23

be primarily dedicated to the subway and were not to

serve as guards to protect personal or physical

property at depots. [And] SEPTA increased the number

of officers from 96 to nearly 200 and introduced a

"zone concept" for the area they patrolled.

Lanning II, 2000 WL 1790125 at 1.10

Given the tenuous relationship between aerobic capacity

and public safety on this record, it is perhaps not

surprising that incumbent officers with an aerobic capacity

too low to apply for the job had an arrest rate that was

virtually identical to another group of officers who satisfied

the 42.5 mL/kg/min cutoff. In Lanning I, we noted that

"officers at less than 37 mL/kg/min had average arrests of

13.6 compared to officers with at least a 48 mL/kg/min

level who had average arrests of 13.9." 181 F.3d at 493

n.21.

V.

Ironically, serendipity has furnished us with a model that

we should not so readily dismiss in assessing the business

necessity of the 42.5 mL/kg/min cutoff. At the outset I

alluded to an instance where SEPTA mistakenly hired a

female applicant who did not meet the aerobic cutoff. That

officer was hired because of a clerical error. SEPTA

concedes that she did not meet the 42.5 mL/kg/min cutoff

when she applied and was therefore not fit to even be

considered for the position of SEPTA Police Officer under

SEPTA’s discriminatory application requirement. That

officer’s performance on a job that she was not"qualified"

to even apply for under the 42.5 mL/kg/min aerobic cutoff

is significant indeed. Her presence patrolling SEPTA

_________________________________________________________________

10. See FOF P 26 ("In response to these problems, SEPTA initiated a

complete overhaul of the police department . . . . This overhaul included

the announcement that transit police were . . . not to serve as guards to

protect personal or physical property at depots. SEPTA increased the

number of officers from 96 to nearly 200 and introduced a ‘zone concept’

for the area they patrolled."). Cf. Brief of Amici Curiae at 14-15 (citing

research demonstrating that decreasing crime on transit systems is a

function of controlling environmental factors and police presence, not

aerobic capacity).

24

property has apparently not endangered the citizens of

Philadelphia at all. On the contrary, as the District Court

originally found:

Officer Thomas was hired in 1991 despite the fact that

she did not complete the 1.5 mile run in 12 minutes

and failed the bench press, sit-up and push-up

components of SEPTA’s physical fitness test for

applicants. Officer Thomas has gone on to become a

decorated officer who has repeatedly been nominated

for awards such as Officer of the Year and Officer of

the Quarter. In fact, SEPTA has commended Officer

Thomas for her outstanding performance as a police

officer. Moreover, Officer Thomas serves as one of

SEPTA’s two defensive tactics instructors.11

Lanning v. Southeastern Pennsylvania Transportation

Authority, 1998 WL 341605 at * 24, FOF 261 (E.D. Pa.

June 25, 1998).

I realize, of course, that the job experience of a single

officer is not statistically significant in evaluating the

relevance of a standard that is supposed to apply to an

entire applicant pool and (at least in theory) an entire police

force. However, I do not offer this officer’s job performance

to counter the statistical record. Rather, I submit that the

officer’s performance is highly relevant to measuring the

necessity of the aerobic cutoff in the context of this entire

record. Her performance is consistent with other evidence

that undermines SEPTA’s justification for gender

discrimination.

One of SEPTA’s experts, Dr. Bernard Siskin, admitted

that correlating arrests and aerobic capacity was not a good

_________________________________________________________________

11. Officer Thomas’ prowess as a defensive tactics instructor despite her

subpar aerobic capacity confirms what common sense would only

suggest. The most effective police officers may be those who are skilled

enough to arrest someone without engaging in the physical struggle that

SEPTA argues partly necessitates an aerobic cutoff at 42.5 mL/kg/min

Indeed, one can not help but be concerned about the idea of a police

officer armed with incapacitating chemical spray and a police baton,

allowing him/herself to be drawn into a protracted struggle with an

arrestee who could grab the officer’s gun and use it against the officer or

anyone else.

25

way to predict the quality of an officer’s policing. In fact, a

study found that individuals with an aerobic capacity of 33

mL/kg/min made more arrests for serious crimes than

individuals with an aerobic capacity of 44 and 46

mL/kg/min. J.A., Vol XII at 1837. Accordingly, I question

the District Court’s conclusion that "aerobic capacity is an

important factor in successfully making arrests." Maj. Op.

at 8 n. 5. If it is, some of the same officers that SEPTA has

promoted and awarded and given commendations to should

not be patrolling Philadelphia’s transit system.

VI.

The District Court’s approval of the 42.5 mL/kg/min

standard in large measure rests upon its acceptance of Dr.

Siskin’s expert opinion. See Lanning II, 2000 WL at *7 to *8.

Although Dr. Siskin did testify that higher aerobic capacity

equated with higher arrests, he did not purport to correlate

the 42.5 mL/kg/min cutoff with any satisfactory minimum

level of policing. We explained this in Lanning I where we

stated:

Dr. Siskin testified that in view of the linear

relationship between aerobic capacity and the arrest

parameters, any cutoff score can be justified since

higher aerobic capacity levels will get you more field

performance (i.e., "more is better"). See Lanning, 1998

WL 341605 at *41. Under the District Court’s

understanding of business necessity, which requires

only that a cutoff score be "readily justifiable," SEPTA,

as well as any other employer whose jobs entail any

level of physical capability, could employ an

unnecessarily high cutoff score on its physical abilities

entrance exam in an effort to exclude virtually all

women by justifying this facially neutral yet

discriminatory practice on the theory that more is

better. This result contravenes Griggs and

demonstrates why, under Griggs, a discriminatory

cutoff score must be shown to measure the minimum

qualifications necessary to perform successfully the job

in question.

181 F.3d at 493 (footnote omitted). Yet, the inquiry has

advanced no further following remand. I still can not help

26

but conclude that all of the additional testimony that the

District Court heard after Lanning I, did nothing more than

establish that "more is better." Yet, the majority insists that

there is adequate support for this cutoff now. My colleagues

argue:

While, of course, a higher aerobic capacity will

translate into better field performance -- at least as to

many job tasks which entail physical capability-- to

set an unnecessarily high cutoff score would

contravene Griggs. It would clearly be unreasonable to

require SEPTA applicants to score so highly on the run

test that their predicted rate of success be 100%. It is

perfectly reasonable, however, to demand a chance of

success that is better than 5% to 20%.

Majority Op. at 10.

"Reasonable" though it may be, the question remains,

what cutoff is necessary to ensure public safety and

effective policing? Where between the purportedly

reasonable level of "5% to 20%" the Majority approves of,

and the unreasonable level of 100% it disapproves of, does

Griggs allow SEPTA to draw a line? Furthermore, why is 5%

to 20% reasonable, and why is 100% unreasonable? The

questions remain unanswered.

The inquiry would be furthered if SEPTA could point to

some objective basis for defining a cutoff or aerobic

threshold. However, the 42.5 mL/kg/min threshold seems

to have been plucked from the air by Dr. Davis after SEPTA

contacted him and asked him to assist in improving the

quality of transit police officers. Dr. Davis testified that he

initially sought the advice of twenty experienced SEPTA

officers (designated as "subject matter experts" or "SMEs")

to determine the level of physical exertion they thought was

required of transit police officers. The SMEs told him that

they thought a SEPTA officer should be able to run a mile

in full gear in 11.78 minutes. However, Dr. Davis rejected

that cutoff because it was too low. He believed nearly

anyone in the general public could satisfy that standard.

Lanning I., 181 F.3d at 482.12 He rejected a standard of 50

_________________________________________________________________

12. The District Court explained that incumbent officers were older and

had a vested interest in establishing a standard that they could meet.

27

mL/kg/min because it was too high. It would have had a

"Draconian effect on women applicants." Id . n.3. He

therefore apparently decided upon a cutoff of 42.5

mL/kg/min because it was not too high, it was not too low;

it was just right. But under Griggs, it is not permissible to

select a discriminatory employment test in the same

manner that Goldilocks chooses which bed to sleep in or

which bowl of porridge to eat.

The 42.5 cutoff was not selected based upon the

requirements of the job. Rather, it was based upon the

expert’s (apparently mistaken) conclusion that that level

would not exclude women. See FOF P 31. Cf. Green, 73 F.

Supp. 2d at 200 (describing cutoff score chosen to have less

impact than initially selected score as "arbitrarily

established"). At the very least, he concluded that the

resulting rate of exclusion was acceptable (i.e."reasonable")

because it did not have a "Draconian" impact.

In Lanning I, we cautioned:

The danger of allowing an employer to carry its burden

by relying simply upon an expert’s invalidated

judgment as to an appropriate cutoff score in a testing

device is illustrated by this case.

181 F.3d at 492 n.19. Accepting the 42.5 mL/kg/min cutoff

as being the minimum level consistent with business

necessity on this record

disregards the teachings of Griggs, Albemarle and

Dothard in which the [Supreme] Court made clear that

judgment alone is insufficient to validate an employer’s

discriminatory practices. . . . . [N]owhere in its

extensive opinion did the District Court consider

whether Dr. Davis’ 42.5 mL/kg/min cutoff reflects the

minimum aerobic capacity necessary to perform

successfully the job of SEPTA transit police officer.

_________________________________________________________________

Accordingly, "in Dr. Henderson’s opinion it is risky to use incumbent

data as a benchmark for establishing entry-level selection devices." 2000

WL 1790125 at *9. That is certainly a logical explanation of why the

lower cutoff recommended by the SMEs was rejected. It does not help us

to understand how the 42.5 mL/kg/min cutoff was decided upon.

28

Id., at 491-2. The only explanation of the source of this

standard comes from Dr. Davis’ testimony during the first

trial. It is not reassuring. There, the following exchange

occurred between Dr. Davis and counsel for the plaintiffs:

Q. Isn’t it correct that you and Dr. Henderson used

your own intellectual creativity in coming up with your

measures of success?

A. A nice way of saying it, yes.

J.A. Vol. III at A.-639 (emphasis added). None of the post

hoc justifications for the cutoff suggest that it rests on any

firmer ground than that response suggests.

SEPTA made no effort on remand to empirically establish

the minimum aerobic capacity necessary to perform as a

transit officer. It merely attempted to justify the 42.5 figure

arbitrarily selected by Dr. Davis as a "compromise" between

a "Draconian" standard that no woman could satisfy on the

one hand, and a "Lilliputian" one that anyone could satisfy

on the other. As Appellants point out, "[r]ather than

attempt to objectively determine a minimum cut score, or

whether any was justified . . . [SEPTA’s experts] merely

sought to measure the effect of the 42.5 standard

previously selected by Dr. Davis." Brief of Appellants at 41.

The inquiry was further handicapped on remand by the

District Court’s refusal to reexamine its original findings. In

Lanning I, we cited numerous concerns with the various

studies that were relied upon to uphold the cutoff, and

expressed concern with the District Court’s refusal to

consider the undisputed evidence that a number of

incumbent officers were performing satisfactorily even

though they could not meet the 42.5 mL/kg/min standard.

We noted:

The District Court rejected as irrelevant the plaintiffs’

evidence that incumbent officers had failed the

physical fitness test yet successfully performed the job

and that other police forces function well without an

aerobic capacity admission test. See Lanning, 1998 WL

341605 at *68-*70. Under the standard implicit in

Griggs and incorporated into the Act, this evidence

tends to show that SEPTA’s cutoff score for aerobic

29

capacity does not correlate with the minimum

qualifications necessary to perform successfully the job

of SEPTA transit officer. Accordingly, this evidence is

relevant and should be considered by the District

Court on remand.

181 F.3d at 494 n.24. We allowed the District Court to

exercise its own discretion on remand as to whether to

consider additional evidence regarding the necessity of the

cutoff. We also noted our concern regarding the court’s

failure to consider evidence that undermined SEPTA’s claim

of business necessity.

Nevertheless, on remand, the District Court proclaimed

"[f]rom the outset" that it "would not disturb its prior

factual findings in this case," although it did allow further

development of the record. In other words, it was willing to

accept additional testimony to support its conclusion, but

was not willing to reexamine the decision that we reversed

in light of any new evidence offered on remand. The District

Court correctly noted that "the sole question to be resolved

[on remand] . . . is whether or not SEPTA has proven that

its 42.5 mL/kg/min aerobic capacity standard is the

minimum necessary for the successful performance of the

job of SEPTA transit police officer." However, it then stated

that the evidence at the first trial, both separately and in

combination with the evidence adduced on remand, clearly

met this test.13

The District Court based its conclusion that "any

standard less than 42.5 mL/kg/min would result in officers

. . . who were a danger to themselves, other officers, and

the public at large, [and] who were unable to effectively

fight and deter crime"14 on the following:

Dr. Davis’ calculations of the aerobic capacity

required to perform essential tasks; the Siskin arrest

studies, including the analysis of performance

differences between those officers always at 42.5

versus those never at 42.5; Dr. Moffatt’s initial study

on work output decrements associated with aerobic

_________________________________________________________________

13. See Lanning II, Conclusions of Law (hereafter "COL") P 4.

14. COL P 32.

30

capacities below SEPTA’s cutpoint; and SEPTA’s most

recent studies [by Drs. Davis and Henderson, which

taken together] more than provides an appropriate

empirical basis for demonstrating that [SEPTA’s]

cutpoint is already set at the minimum.

COL P 31.15

Whether the analyses and studies provided by SEPTA’s

experts are sufficient to support this finding turns on

whether they were reasonably calculated to measure

minimum requirements, i.e., whether they fairly

corresponded to actual job requirements and whether they

fairly determined minimum performance standards for

those requirements.16 In assessing this, we must remember

_________________________________________________________________

15. Two other conclusions of particular import are that the evidence

"clearly demonstrates that 42.5 is the minimum aerobic capacity

necessary . . . given the abysmal success rate on critical job tasks of

those that failed . . . when compared to those that passed . . . ." and that

"[t]he testimony and studies of Drs. Davis and Henderson conclusively

demonstrate that . . . 42.5 mL/kg/min is the minimum required . . . ."

COL PP 9-10.

However, as we observed in Lanning I,

[i]t is unlikely that such a study could validate rankhiring with a

discriminatory impact based upon physical attributes in complex

jobs such as that of police officer in which qualities such as

intelligence, judgment, and experience surely play a critical role.

This is especially true in SEPTA’s case, when the record indicates

that SEPTA patrol officers encounter ‘running assists’, the most

strenuous task upon which SEPTA’s aerobic capacity testing

predominately was justified, at an average rate of only twice per

year.

Id. 181 F.3d at 493 n.23.

16. This standard is in accordance with Congress’s restoration of the

pre-Wards Cove conception of "business necessity" in which the

employer is required to justify not only the legitimacy of the ends, but

also the necessity of the means. More specifically, the two-part standard

follows directly from the Supreme Court’s holdings in Albemarle Paper

Co. v. Moody, 422 U.S. at 431 (holding that"discriminatory tests are

impermissible unless shown, by professionally acceptable methods, to be

‘predictive of or significantly correlated with important elements of work

behavior which are relevant to the job . . . for which candidates are being

31

that the employer, SEPTA, has the burden of proof as a

matter of express congressional policy, and that that policy

is based upon a recognition of the very real social harm

resulting from the disparity that the employer must justify.17

Consequently, the federal courts have a heightened

responsibility to scrutinize the employer’s proffered

justification.18

Finally, the Equal Employment Opportunity

Commission’s Guidelines also call for heightened scrutiny

where there is a severe disparate impact, low statistical

correlation, or over-emphasis on limited aspects of job

performance. Each of these are present here. See 29 C.F.R.

S 1607.14B(6). The District Court’s failure to heed those

_________________________________________________________________

evaluated’ ") (emphasis added) and Dothard 433 U.S. at 332 (indicating

that "a discriminatory employment practice" such as a discriminatory

cutoff score on an entry level exam "must be shown to be necessary to

safe and efficient job performance to survive a Title VII challenge")

(emphasis in original). See also Griggs, 401 U.S. at 432 (stating that "any

given requirement must have a manifest relationship to the employment

in question").

17. See Pub. L. 102-166 S 3(4) (1991) (Civil Rights Act was passed "to

respond to recent decisions of the Supreme Court by expanding the

scope of relevant civil rights statutes in order to provide adequate

protection to victims of discrimination").

Cf. Griggs, 401 U.S. at 431 (holding that Title VII requires "the removal

of artificial, arbitrary, and unnecessary barriers to employment when the

barriers operate invidiously to discriminate on the basis of racial or other

impermissible classification"); Lanning I, 181 F.3d at 489 ("[O]nly by

requiring employers to demonstrate that their discriminatory cutoff score

measures the minimum qualifications necessary . . . can we be certain

to eliminate the use of excessive cutoff scores that have a disparate

impact on minorities as a method of imposing unnecessary barriers to

employment opportunities.").

18. Cf. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (applying

"heightened" or "intermediate" scrutiny to peremptory strikes based on

sex); Clark v. Jeter, 486 U.S. 456, 460 (1988) (observing that

"intermediate scrutiny . . . generally has been applied to discriminatory

classifications based on sex") (citing Mississippi University for Women v.

Hogan, 458 U.S. 718, 723-24 and n. 9 (1982); Mills v. Habluetzel, 456

U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Mathews

v. Lucas, 427 U.S. 495 (1976)).

32

Guidelines, or to require that SEPTA’s studies conform to

specific validation criteria, provides an independent

justification for reversing the District Court. 19

_________________________________________________________________

19. The District Court found that, in developing its physical abilities

testing, SEPTA’s expert had "applie[d] criterion-related, construct and

content validation strategies." FOF P 15. However, it is clear from the

record that no real attempt was made to establish either criterion or

construct validity for SEPTA’s test because no empirical data was

submitted to show the required correlation between tested running times

and ultimate job success. The only attempt to establish a correlation to

actual job performance was an arrest analysis prepared by Dr. Siskin.

That analysis neither encompassed a representative spectrum of SEPTA

transit officer job duties nor evidenced any unsatisfactory performance

by those officers failing to meet the cutoff. Compare, e.g., Guardians

Association of New York City Police Dept., Inc. v. Civil Service

Commission, 630 F.2d 79, 92 (2d Cir. 1980) (construct validation

requires criterion-related study, which in turn requires "a demonstration

from empirical data that the test successfully predicts job performance")

(citing EEOC Guidelines); Berkman v. City of New York, 705 F.2d 584,

588 (2d Cir. 1983) (rejecting proffered justification of discriminatory

selection procedure where city "failed to produce. . . [inter alia]

‘empirical data demonstrating that the selection procedure [was]

predictive of or significantly correlated with important elements of job

performance’ . . . (called ‘criterion validation’)"); Williams v. Ford Motor

Co., 187 F.3d 533, 539-41 (6th Cir. 1999) (criterion studies examine

"whether performance on [a] test adequately correlates with performance

on the job"); United States v. City of Chicago, 573 F.2d 416, 426 n.10,

427 (7th Cir. 1978) (fire department was required to show that

promotional examinations were "predictive of successful performance in

the jobs being tested for"; where there was "no attempt to determine

from a job analysis what traits are necessary for job performance", tests

at issue "fail[ed] to demonstrate either criterion validity or construct

validity because they fail[ed] to predict performance . . . .") (citing EEOC

Guidelines); Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 669

(7th Cir. 1996) (test invalid where there was no correlation between

performance on challenged test and performance in job for which test

was given, and little or no support for validity of test in predicting core

areas of job performance); Firefighters Institute For Racial Equality v.

United States, 549 F.2d 506, 510-11 (8th Cir. 1977) ("Criterion-related

studies involve the correlation of job performance with success on an

examination.").

33

VII.

Given all that I have set forth, I do not think there is any

need to dwell on the specifics of the various statistical

studies or methodologies that have been summoned to

support the 42.5 mL/kg/min cutoff. After all has been said

and done, after all the studies have been tabulated, all of

the regression analyses analyzed, and all of the numbers

fed into all of the number-crunching software on all of the

computers, on all of the experts’ desks; one unassailable

fact remains. The 42.5 mL/kg/min aerobic capacity is not

required of transit officers before or after they begin

policing. Rather, it is used to disqualify applicants even

though the application may be submitted as much as two

and one-half years before graduation from the police

academy and employment as a police officer. Moreover, as

I have noted at length above, once officers actually begin

protecting SEPTA’s riders and property, they do not have to

demonstrate or maintain any minimum aerobic capacity.

Yet, SEPTA insists upon arguing that this aerobic cutoff

has a very precise, demonstrable, correlation to public

safety, and that it therefore supports the gender

discrimination that SEPTA admits results from it.

Even though I do not think it necessary to attempt a

statistical exegesis to illustrate why SEPTA has not

demonstrated a business necessity for using the cutoff as

an application requirement, I can not conclude without

commenting on one particularly fascinating (and perhaps

illuminating) study that SEPTA commissioned to support

the 42.5 mL/kg/min cutoff. Although my colleagues

criticize an analysis that "poke[s] a hole here or there in

one or more of the District Court’s extensive findings of fact

and conclusions of law[,]" Majority Op. at 4, I can not allow

the sheer extent of the District Court’s opinion to substitute

for the proof required under Griggs. Accordingly, I must

take one specific "poke" that I believe exposes the hole that

SEPTA’s business justification should have fallen through.

As noted above, SEPTA wanted to determine the aerobic

capacity of "perpetrators" that transit police might have to

pursue in order to determine the validity of the 42.5

mL/kg/min aerobic cutoff. As part of its inquiry it

attempted to measure the aerobic output necessary to

34

apprehend the average perpetrator. Of course, any good

study begins with a representative sample, and the

perpetrator study was no exception. Accordingly, Dr. Davis

recruited a group of 31 subjects in order to get an idea of

the aerobic capacity necessary for transit police officers to

chase and apprehend them. However, there was one little

problem with the study. It seems that Dr. Davis recruited

his subjects at the University of Maryland track while the

University’s NCAA Division I track team was there.

The resulting "sample" contained 9 University of

Maryland track "stars," 10 high school track"stars," 2

other college athletes, and 2 high school running backs

who had been accepted to play football at major colleges.20

After plaintiffs’ counsel complained about the skewed

sample, the results for the 9 members of the University of

Maryland track team were factored out, and the results

were analyzed without including their times. This reduced

the sample to 22 subjects of whom "only" 14 (a mere 64%)

were trained athletes, and four were nonathletes. 21

Moreover, the high school runners were not your average

high school "track star." The group remaining after

"correcting" for the members of the University of Maryland

track team included high school runners who were

"winners of regional, state and sometimes national races."

J.A. IV at A-916 (emphasis added). Dr. Landy characterized

their times as "staggering." His reaction to suggesting that

the aerobic performance of such a group represented the

_________________________________________________________________

20. It may stretch the limits of judicial notice, but I would ask the

Majority to accept as fact that major college running backs are generally

not noted for an absence of speed, quickness, or aerobic capacity.

21. The plaintiffs were unable to get any information about the

remaining four members of the group. Dr. Landy, one of plaintiffs’

experts testified about the information he was able to gather pertaining

to the 22 subjects who had been contacted.

[W]e know that of the 22, 10 are high school track members but not

just track members as if they just wander out every afternoon and

run a little bit. These 10 are acknowledged track stars. . . .

J.A. Vol. IV at A-917. He further explained that one of the two football

players "has been recruited by the University of Georgia and will go

there. He is a running back and a linebacker and a defensive end." Id.

35

population that SEPTA police might have to chase was

appropriate. He stated: "[i]t just stretches anything that I

could imagine, to imagine that 22 of 31 SEPTA perpetrators

are world class athletes." Id. at A-917.

Although this is not your usual "representative sample,"

it was representative enough to form part of the

justification for the 42.5 mL/kg/min cutoff. Incredibly, the

only justification Dr. Davis offered for basing his study on

such an athletically talented group of trained athletes was

that athletes are part of the general population and

therefore part of the population that uses SEPTA. See

Appellants’ Br. at 38.22

It is difficult to imagine a more graphic demonstration of

what can result when studies seek to justify a standard

rather than objectively define one. Yet, that is what

happened here.23 Of course, this, by itself, is not fatal to the

42.5 mL/kg/min cutoff. It is, however, illustrative of the

concern we expressed in Lanning I, and it is also illustrative

of why the current cutoff, though perhaps "reasonable" in

the eyes of some, can not be seen as "necessary" when

viewed through the lens of Title VII.

VIII.

Prior to today’s decision, it was established in this

Circuit, as it remains established in others, that a job

_________________________________________________________________

22. Though the record does not include any objective study of the

ridership of SEPTA, I have resided in Philadelphia for over a quarter of

a century, and I have serious doubts that approximately 64% of the

people using public transportation in Philadelphia so closely resemble

regional and national track stars, and running backs from major

colleges. Yet, that is the justification that is offered for considering this

study.

23. I do not doubt that Doctors Davis and Henderson are very learned

experts who are knowledgeable and respected in their respective fields.

I am nevertheless troubled by their propensity or willingness to include

college athletes -- indeed, superior athletes from Division I schools -- in

a study of aerobic capacity of the average perpetrator using public

transportation in Philadelphia. I am even more troubled by the extent to

which it suggests the defensive nature of SEPTA’s attempt to justify its

cutoff, and the District Court’s acceptance of it.

36

requirement that has a disparate impact based upon

gender could only be upheld if the relationship between the

discriminatory requirement was so closely related to the

essential of a given job that it could be justified as a

business necessity. Today, in upholding a discriminatory

application process based only upon a colorable claim of

business necessity, we retreat from that standard while

purporting to apply it. Yet, in enacting the Civil Rights Act

of 1991, I believe Congress meant exactly what it said;

discrimination in the name of "business necessity" must

truly be necessary. No such necessity has been established

here.

SEPTA can not "have its cake and eat it too." The aerobic

cutoff is either so vital to public safety that it is a business

necessity; in which case, SEPTA can not require it only of

applicants without showing that the failure to require it of

incumbents has had a negative impact on their

performance as police officers. If, on the other hand, the

relationship between public safety and the 42.5 mL/kg/min

cutoff is as tenuous as suggested by SEPTA’s failure to

consider it when making job offers, promotions or

commendations, then SEPTA can not continue to use

justifiable concerns about public safety as a boogeyman to

support the admittedly discriminatory cutoff it uses to

screen applicants. Accordingly, I must respectfully dissent

from the decision of my colleagues.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

37