to pass certain physical requirements a great many organizations which are in the business of providing security of one form or another a lot of them not all of them but but a good many of them have some sort of physical lab to to test where this isn't necessarily that unusual and and i'm wondering if any time you work some situations with in their class that may appear inequitable i was thinking when i read your you rid your case of about me of vaccine requirements of the there seemed to be some very inequitable inclusion or exclusion or whatever but that kind of goes along with the ability to classify and a set rules and kind of goes along with the whole idea of governance does not what does this this case there's an argument about standing and my question to you is b is constructive constructive discharge a question of fact or a question but that doesn't apply to federal employers by two thousand e's sixteen applied to federal employers so easy to is simply an affable and cannot be applied against the federal government at anything which has an adverse effect and if you are not a federal if you are a privacy was a private institution you might have some disparate effect and but it seems to me that the claim that you're really raising sounds like an adverse effect or a disparate effect claim with respect to this requirement well and i don't i don't understand and it may have a disparate effect but i don't this in seems to be one of adverse effect and there may well be an adverse effect but i'm just not sure that it's a start to sets it up that way so i think i've sta eight point six percent of women applicants pass and was passed a fail wouldn't it have been would you have a stronger case if to federal employees is different from is worded differently from the start you know as it applies to private sector employees and s understand your point about the thing about the jury but the problem is if some some serious threshold some serious threshold questions a law which i think the district court was was bound to to consider are chancy any red light it says your time expired oh do you still have more time could not plead that she suffered an adverse employment action that was caused by the allegedly discriminatory conduct in that is a physical abilities test can you talk just as a missile matter before you get into the analysis of why this was done at the standing stages opposed to the twelve b six states in the supreme court's been pretty clear that you can late the merits of the plane with the standing analysis right in front versus a why and otherwise they've been clear that they're not the same you have an arguable claim versus do you have a claim it would survive the twenty six are different questions help me understand why the district judge here didn't just conflate those and may well be precisely right on at twelve the th and there but that's not a standing in well your honor just as an initial matter we've we made it will be six arguments the record as well at the district court while one on the on the standing side and i think in this case the district court was correct to do so and that's because all of the information that the court would have needed to so let me ask it may be it may be a different way is your argument with respect an adverse employment action that the district court relied on st standing purposes is it any different than your twelve b six argument or do you agree that those those two arguments or identify whether it is a constructive discharge or not we look at it the same way twelve b one standing as a twel is that's your argument or is there a difference between the two arguments you make i think the i don't know i doubt i don't know identical i think substantively the same for purposes of the argument that we are making with rather th let me understand what the difference would be at a twelve b six the reason i say not identical is i'm just not one hundred percent sure that i could but i can say that but practically identical i mean there's no difference in the analysis here because that's entered any different i mean are you is the is the bar higher or lower for a one in this case in this case your honor no because of the way that the complaint was plead under is sixteen would survive even though there is no such claim in this the generous and you are right about that the complaint cited the private sector time seven provision and also i believe the private sector eighty e i provision  we responded to the complaint nonetheless the and addressed the complaint as having pleaded the correct statute the analysis were you to apply the private sector an test has a disparate impact in that females over age forty applicants fail the test and disproportionately higher rates but she doesn't plead that she was asked to resign for having failed the test what she instead believes is that she had two chances to take the test failed the st then voluntarily declined taking the  and specifically alleges that she did did so because she feared that in her exhausted physical condition she would be unable to complete it you know satisfactory time declined to take her nd only event only  after having declined her nd chance to take us was asked to resign or be terminated so as dr to coco pleaded her claim what the b o p did the action by the employer here after her st failure was not an adverse employment action it was to be if you gave her the nd chance to take the test which she then voluntarily decline well subjective fear of failure doesn't give rise to to standing because there are all kinds of people that say well i would be you know futility is a very broad office rule all particular regulation or whatever it would just be it would be futile for me to go through the the hoops i think i thought that the supreme court  reasonable balance because you know there are lots of lots of things in everyone's life where you might have to take a test or you might have to  of physical exam or you might have to do this or do that to prove your qualifications and if you just saw to give up on it and say well it rolling it just makes governance a more difficult thing to do in it makes institutional governance much more difficult to  do and i think clapper was responding to that concern when it said that subject to fear of failure which is what i think you have here doesn't give rise to standing i thought you could you can sort of look at it standing in in two ways here it think one is what you pointed out which was it was an absence of a causal connection it wasn't the any kind of discrimination all of whatever the lead to the fact that she left it was twelve b one and one could be dismissed on to twelve b six but it did seem to me that they were getting at the same thing  so as sort of a threshold matter well she in this case and any plaintiff who doesn't complete an application process who in turn is claiming disparate impact has a threshold issue you'd have to get sort past that well then you didn't you didn't finish applying or you didn't apply at all how do you know how could you have been injured by rejection and there you have to get around that and there are ways that in the law for players to get around that specifically the futile juster doctrine just what she's saying is i didn't take what she's pleading that is i didn't take the nd test because i feared that you might exhaust the state i would pass it that fear is not sufficient here under clapper because she has also pleaded that the supported by any like actual and in that case surveillance right and so there's not is not certainly impending incept interception but that here it is slightly different right because she took the test she failed the test right and so this is a merely such a subjective fear right she actually took the test she failed it and they asked her to take it again and she says listen i think best i mean that that to me d not look like this purely subjective inquiry that we talk about in class or instead it would be as if in class her they said yes we know we here is the evidence that we've been intercepted for the last six months right we don't know when maybe we don't have absolute certainty that we will be intercepted next month but we've been intercepted six months in iraq and so we can reasonably say not just subjective fear but it's a reasonable conclusion that there's a certain if you don't just your doctrine sort of the next step of what i was going to say and that is that the the injury here because it's a disparate claim here because it's a desperate impact like it is a policy that falls more harshly on one group than another and therefore harms members of that group or that class so the subjective fear here of the reason that clapper applies is because it's an individual subjective fear a subjective fear of failure a lot of people have a subjective fear fan after they failed it once but a lot of people do a that seems to me a threshold problem  presentations this is it this would be if you fine if you fine for the appellee this would be a very narrow decision because it's based on particular facts as we did in this complaint that what i mean by that is this would not foreclose clients for disparate impact generally of course not but it also would foreclose clients when someone doesn't complete an application process or doesn't take a nd test that's already accounted for in the law under the futile just reduction but the facts that one would be to plead to come within the futile juster doctor are just not in this complaint did she was not faced with certain rejection on the nd time and the reason that we know that is because she also pleaded that the overwhelming majority of people in her groups yet you should groups here female no overage forty pets so it would not have been futile for her to complete the application process under the specific facts in a d he says the reason i didn't take the nd time was because i feared that i was exhausted you know for i would say no which is an individual subjective fear for a claim that relates to class why hops in class wide disparate impact in so this is a very narrow case at the end of the day on the law already allows for people in certain instances she not apply or to have complete trust in still bring disparate being able to answer questions that she or he didn't answer quite properly in the st test that's not what this yes this is a physical abilities tes lying and she has a good reason not to take a test that she feels is not simply fearful but is she won't be able to pass in particular given twenty four hours and that's the difference of all these other cases but also important here when you go back to the early days of justice black in just those douglas and the early days of headway in racial discrimination in the factories where of the black employees got the lesser jobs and the whites got the more important jobs when you go back to bat that's what we're talking about here not black and white we're talking about male and female and the supreme court in mississippi university for women  certain justification close quote for about action and there are other supreme court cases not reported in the brief we're how going by for a nd bite at the apple