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. e du/thir dc ir c uit_1999/177Filed June 29, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1644 and 98-1755

CATHERINE NATSU LANNING; ALTOVISE LOVE; BELINDA KELLY DODSON; DENISE DOUGHERTY;

LYNNE ZIRILLI

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA); (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 Kel ly Dodson, Denise Doughtery and Lynne Zirilli,

Appellants in No. 98-1644

United States of America, Appellant in No. 98-1755

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Nos. 97-cv-00593; 97-cv-01161) District Judge: Honorable Clarence C. Newcomer

Argued: April 28, 1999

Before: MANSMANN, WEIS and GIBSON,* Circuit Judges.

___________________________________________________ ______________

*Honorable John R. Gibson, of the United States Cou rt of Appeals for the Eighth Circuit, sitting by designation.(Filed June 29, 1999)

Lisa M. Rau, Esquire (ARGUED) Jules Epstein, Esquire Kairys, Rudovsky, Epstein, Messing & Rau 924 Cherry Street, Suite 500 Philadelphia, PA 19107

Michael Churchill, Esquire

Public Interest Law Center of Philadelphia

125 South 9th Street

Suite 700 Philadelphia, PA 19107

Counsel for Appellants: Catherine Natsu Lanning; Altovise Love; Belinda Kelly Dodson; Denise Dougherty; Lynne Zirilli in

No. 98-1644

Bill Lann Lee, Esquire Acting Assistant Attorney General Dennis J. Dimsey, Esquire Leslie A. Simon, Esquire Robert S. Libman, Esquire

(ARGUED) United States Department of Justice Civil Rights Division

P.O. Box 66078 Washington, DC 20035-6078

Counsel for Appellant in

No. 98-1644

Saul H. Krenzel, Esquire (ARGUED)

Saul H. Krenzel & Associates The Robinson Building, Suite 800

42 South 15th Street Philadelphia, PA 19102

Counsel for Appellee -- SEPTA

2OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, we must determine the appropriate l egal standard to apply when evaluating an employer's bus iness justification in an action challenging an employer' s cutoff score on an employment screening exam as discrimina tory under a disparate impact theory of liability. We ho ld today that under the Civil Rights Act of 1991, a discrimi natory

cutoff score on an entry level employment examinati on 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. B ecause we find that the District Court did not apply this standard in evaluating the employer's business justification for its discriminatory cutoff score in this case, we will r everse the District Court's judgment and remand for reconsider ation under this standard. In light of our decision to re mand on this basis, we need not reach the parties' other as sertions

of error.

I.

This appeal comes to us from a judgment entered by the District Court in favor of the Southeastern Pennsyl vania Transportation Authority ("SEPTA") after a twelve d ay bench trial in January of 1998. Although the parties gene rally do not dispute the facts relevant to this appeal, to t he extent there are favorable inferences to be drawn, we must draw them in favor of SEPTA as the prevailing party. In addition,

because we must not disturb the factual findings of the District Court unless clearly erroneous, much of th e following background is adopted from the facts as f ound by the District Court in its extensive memorandum opin ion. See Lanning v. Southeastern Pennsylvania Transp. Au th., 1998 WL 341605, at *1-*52 (E.D. Pa. June 25, 1998).

3A.

SEPTA is a regional mass transit authority that ope rates principally in Philadelphia, Pennsylvania. In 1989, in response to a perceived need to upgrade the quality of its transit police force, SEPTA initiated an extensive program designed to improve the department. As part of this program, SEPTA dedicated its transit officers prima rily to patrolling the subways and limited their responsibi lities to serve as guards at other SEPTA property. In additio n, SEPTA increased the number of its officers from 96 to 200 and introduced a "zone concept" for the areas they patrol.1 SEPTA also began to consider methods by which it mi ght upgrade the physical fitness level of its police of ficers.

In 1991, SEPTA hired Dr. Paul Davis to develop an appropriate physical fitness test for its police of ficers.2 Dr. Davis initially met with SEPTA officials in order t o ascertain SEPTA's objectives. Dr. Davis determined that SEPTA was interested in enhancing the level of fitness, physi cal vigor and general productivity of its police force. Once Dr. Davis had determined SEPTA's objectives, he went on a rid e-along with SEPTA transit police and, over the course of t wo days and approximately twenty hours, rode the SEPTA trai ns in order to obtain a perspective on the expectations o f SEPTA

transit officers.

Dr. Davis next conducted a study with twenty experienced SEPTA officers, designated "subject mat ter experts" (SMEs), in an effort to determine what phy sical abilities are required to perform the job of SEPTA transit officer. From the responses Dr. Davis received in t his study, he determined that running, jogging, and walking we re

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1. Under the zone concept, SEPTA designated eight s eparate zones covering the subway system. In a typical zone, one Lieutenant is assigned to command the zone. Two Sergeants are als o assigned to the zone. Three shifts of officers per day tour the zon e. Beats within the zones are assigned to the individual officers. Beat s are reassigned periodically to familiarize the officers with the e ntire zone. Officers patrol

their beats alone and on foot.

2. Dr. Davis is an expert exercise physiologist who has extensive experience in designing physical fitness employment tests for various law enforcement agencies.

4important SEPTA transit officer tasks and that SEPT A

officers were expected to jog almost on a daily bas is.

Dr. Davis then asked the SMEs to determine what lev el of physical exertion was necessary to perform these tasks. The SMEs estimated that it was reasonable to expect them to run one mile in full gear in 11.78 minutes. Dr. Davis rejected this estimate as too low based upon his determination that any individual could meet this requirement. Ultimately, Dr. Davis recommended a 1. 5 mile run within 12 minutes. Dr. Davis explained that com pletion of this run would require that an officer possess a n aerobic capacity of 42.5 mL/kg/min, the aerobic capacity th at Dr. Davis determined would be necessary to perform the job of

SEPTA transit officer.3

Dr. Davis recommended that SEPTA use the 1.5 mile r un as an applicant screening test. Dr. Davis understoo d that SEPTA officers would not be required to run 1.5 mil es within 12 minutes in the course of their duties, bu t he

nevertheless recommended this test as an accurate measure of the aerobic capacity necessary to perfor m the job of SEPTA transit police officer. Based upon Dr. Davis' recommendation, SEPTA adopted a physical fitness screening test for its applicants which included a 1.5 mile run within 12 minutes. Beginning in 1991, the 1.5 m ile run was administered as the first component of the phys ical fitness test; if an applicant failed to run 1.5 mil es in 12 minutes, the applicant would be disqualified from employment as a SEPTA transit officer.

It is undisputed that for the years 1991, 1993, and 1996, an average of only 12% of women applicants passed SEPTA's 1.5 mile run in comparison to the almost 60 % of male applicants who passed.4 For the years 1993 and 1996, the time period in question in this litigation, the pass rate

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3. Dr. Davis initially decided that an aerobic capa city of 50 mL/kg/min was necessary to perform the job of SEPTA transit p olice officer. After determining that institution of such a high standar d would have a draconian effect on women applicants, however, Dr. Davis decided that the goals of SEPTA could be satisfied by using a 42 .5 mL/kg/min

standard. 4. SEPTA contends that it did not seek applicants i n 1992. Credited testimony was offered, however, that each of the si x or seven women who took the 1.5 mile test in 1992 failed. Relying on t his testimony, the District Court found that the disparate impact on w omen was slightly more pronounced than the 1991, 1993, and 1996 figur es reflect. See Lanning, 1998 WL 341605 at *28.

5for women was 6.7% compared to a 55.6% pass rate fo r

men. In addition, research studies confirm that a c utoff of 12 minutes on a 1.5 mile run will have a disparatel y adverse impact on women.5 SEPTA concedes that its 1 .5 mile run has a disparate impact on women.

In conjunction with the implementation of its physi cal fitness screening test, SEPTA also began testing in cumbent officers for aerobic capacity in 1991. SEPTA policy requires any officer who fails any portion of the incumbentf itness

test to retest on the failed element within three m onths. For each portion of the physical fitness test that an i ncumbent officer fails, an interim goal is set for that offi cer.

SEPTA initially disciplined those incumbent officer s who failed the fitness test. Due to protests by the inc umbent officers' union, however, SEPTA discontinued its di scipline policy and instead implemented an incentive program that rewarded incumbent officers for passing their inter im fitness goals.

According to SEPTA's internal documents, significan t percentages of incumbent officers of all ranks have failed SEPTA's physical fitness test.6 By 1996, however, 8 6% of incumbent officers reached SEPTA's physical fitness standards. SEPTA has never taken any steps to deter mine whether incumbent officers who have failed the phys ical

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5. For example, one proffered study showed that app roximately 47% of men between the ages of 20 to 29 can perform a 1.5 mile run in 12 minutes where only 12% of women in the same age cat egory can achieve this time. As noted by the District Court, testimon y was offered that this study may not be entirely reliable because the wome n who participated in the study were predominately white women of high er socioeconomic status. Other research studies, however, were offer ed which show that men generally have a higher aerobic rate than women due to physiological differences between the sexes.

6. The District Court pointed to one document, for example, indicating that between July 1, 1994 and August 22, 1995, the percentage of uniformed personnel who failed the fitness test was as follows: a) Age group 20-30: 10% of all officers; b) Age group 30-4 0: 30% of all officers and 12% of all supervisors; c) Age group 40-50: 45% of all officers and 52% of all supervisors; d) Age group 50-60: 55% of all officers and 40% of all supervisors. See Lanning, 1998 WL 341605 at *31.

6fitness test have adversely affected SEPTA's abilit y to carry

out its mission.

SEPTA has promoted incumbent officers who have fail ed some or all of the components of the physical fitne ss test. SEPTA has also given special recognition, commendat ions, and satisfactory performance evaluations to incumbe nt officers who have failed the physical fitness test. SEPTA has never disciplined, terminated, removed, reassigned, suspended or demoted any transit officer for failin g to perform the physical requirements of the job.

In addition, due to a clerical error, SEPTA hired a female

officer in 1991 who failed the 1.5 mile run. This o fficer has subsequently been "decorated" by SEPTA and has been nominated repeatedly for awards such as Officer of the Year and Officer of the Quarter. SEPTA has commended her for her outstanding performance as a police officer and has

chosen her to serve as one of SEPTA's two defensive tactics

instructors.

SEPTA employs an extremely low number of women in i ts transit police force. The District Court found that , as of July 1997, SEPTA employed only 16 women in its 234 member police force. Only two of these women hold r anks higher than that of patrol officer. See Lanning, 19 98 WL

341605 at *27.

B.

On January 28, 1997, after satisfying all administr ative prerequisites, five women who failed SEPTA's 1.5 mi le run brought a Title VII class action against SEPTA on b ehalf of all 1993 female applicants, 1996 female applicants and future female applicants for employment as SEPTA po lice officers who have been or will be denied employment by reason of their inability to meet the physical entr ance requirement of running 1.5 miles in 12 minutes or l ess. On February 18, 1997, the Department of Justice, after conducting the appropriate investigation of SEPTA's employment practices and meeting all conditions pre cedent under Title VII, also filed suit on behalf of the U nited States challenging SEPTA's entire physical fitness test, i ncluding the 1.5 mile run. The District Court properly exerc ised

7jurisdiction over these Title VII actions challengi ng SEPTA's

hiring practices pursuant to 28 U.S.C. S 1331. On A pril 21, 1997, the District Court consolidated the two actio ns for all purposes up to and including trial.

After litigation commenced, SEPTA hired expert statisticians to submit reports examining the stati stical relationship between the aerobic capacity of SEPTA' s officers and their number of arrests, "arrest rates "7 and number of commendations. In these reports, the

statisticians concluded that there was a statistica lly significant correlation between high aerobic capaci ty and arrests, arrest rates and commendations. In additio n, one expert prepared a report that estimated that 51.9% of the persons arrested for serious crimes between 1991 an d 1996 had an aerobic capacity of 48 mL/kg/min and 27% of those arrested had an aerobic capacity of less than 42 mL /kg/min.8 Based upon these reports, the District Court held t hat SEPTA established that its aerobic capacity require ment is job related and consistent with business necessity. See Lanning, 1998 WL 341605 at *35.

The District Court also found support for this conc lusion in an expert report submitted on behalf of SEPTA by Dr. Robert Moffatt. Dr. Moffatt simulated a training co urse and concluded that officers with aerobic capacities of 45 mL/kg/min or better had a 7-8% decrement in their a bility to perform physical activities after a run of appro ximately three minutes; officers with an aerobic capacity of less than 45 mL/kg/min exhibited a 30% decrement in physical ability after the same run. The District Court foun d that Dr. Moffatt's study demonstrates "the manifest relation ship of aerobic capacity to the critical and important duti es of a SEPTA transit police officer . . . ." Id. at *68.

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7. "Arrest rates" were tabulated by expressing the number of arrests made by an officer as a percentage of the number of incident reports involving that officer. See App. at 3040-41 (Siskin Expert Report).

8. The category of "serious crimes" includes homici de, rape, robbery, aggravated assault, burglary, theft, and auto theft . This category of arrests accounts for approximately ten percent of a ll reported incidents and seven percent of all reported arrests. See App. at 3040. (Siskin Expert Report).

8The District Court entered judgment in favor of SEP TA on

all claims. Both the individual plaintiffs and the United States have taken appeals from the District Court's final judgment, over which we have jurisdiction pursuant to 28 U.S.C. S 1291. On appeal, the individual plaintiffs assert that the District Court applied incorrect legal sta ndards in evaluating SEPTA's business necessity defense and t hat the District Court made erroneous findings of fact in determining that SEPTA's 1.5 mile run does not viol ate Title VII. Although the United States initially challenge d SEPTA's implementation of its entire physical fitness test, on appeal the United States joins the individual plaintiffs i n asserting error solely with respect to the District Court's

determination that SEPTA's 1.5 mile run is not viol ative of

Title VII. Because the issue of whether the Distric t Court applied the correct legal standard is one of law, o ur review is plenary.

II.

Under Title VII's disparate impact theory of liabil ity, plaintiffs establish a prima facie case of disparat e impact by demonstrating that application of a facially neutra l standard has resulted in a significantly discrimina tory hiring pattern. See Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). Once the plaintiffs have established a prima facie case, the burden shifts to the employer to sh ow that the employment practice is "job related for the pos ition in question and consistent with business necessity . . . ." 42 U.S.C. S 2000e-2k. Should the employer meet this bu rden, the plaintiffs may still prevail if they can show t hat an alternative employment practice has a less disparat e impact and would also serve the employer's legitimate busi ness interest. See Albemarle Paper Co. v. Moody, 422 U.S . 405, 425 (1975).

Because SEPTA concedes that its 1.5 mile run has a disparate impact on women, the first prong of the d isparate impact analysis is not at issue in this appeal.9 Ra ther, this

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9. On appeal, SEPTA offered evidence to establish t hat the individual female applicants who failed SEPTA's 1.5 mile run d emonstrated a cavalier attitude in preparing for and taking the t est. As aptly noted by plaintiffs' counsel at oral argument, this evidence has no bearing upon our analysis in this appeal because SEPTA has conce ded that its test has a severe disparate impact on women.

9appeal focuses our attention on the proper standard for

evaluating whether SEPTA's 1.5 mile run is "job rel ated for the position in question and consistent with busine ss necessity" under the Civil Rights Act of 1991. Beca use the Act instructs that this standard incorporates only selected segments of prior Supreme Court jurisprudence on th e business necessity doctrine, we examine the history of this

doctrine in order to resolve this threshold issue.

A.

The disparate impact theory of discrimination under Title VII was judicially created in the seminal case of G riggs v. Duke Power Co., 401 U.S. 424 (1971). In embracing disparate impact, the Court recognized that Title V II was meant not only to proscribe overt discrimination, b ut also to prohibit "practices that are fair in form, but discriminatory in operation." Griggs, 401 U.S. at 4 31. The Court made clear that what is required by Title VII is "the removal of artificial, arbitrary, and unnecessary b arriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other imperm issible classification." Id. Accordingly, the Court announc ed that in evaluating practices fair in form but discriminator y in operation, "[t]he touchstone is business necessity. " Id.

The Court, however, was unclear in articulating wha t an employer must show to demonstrate business necessit y. The Court couched the employer's burden in terms of showing that its practice is "related to job perfor mance"; "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used"; has "a manifest relationship to the employment in question "; and is "demonstrably a reasonable measure of job perfor mance." Id. at 431, 432, 436. In applying this standard, ho wever, the Court rejected the employer's justification in Griggs that its standardized intelligence tests and diploma requirements generally would improve the overall qu ality of the work force in its power plant. The Court held t hat, although these requirements may be useful, they cou ld not be used to exclude disproportionately a protected g roup when the employer failed to show that they do not t est an

10applicant's ability to perform the job in question. Id. at 431-

33.

The Court next spoke to the issue of business neces sity in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975 ). In Albemarle, an employer sought to justify the use of verbal exam and high school diploma requirements in determ ining whether to promote employees to more skilled positi ons in its paper mill. Albemarle, 422 U.S. at 408-11. In preparation for trial, the employer hired an indust rial psychologist to complete validation studies showing that the tests were job related because they had a stati stically significant correlation with supervisorial ratings in several groups of the jobs in question. Id. at 429-30. The Court, nevertheless, rejected the employer's contention th at its requirements were job related.

The Court held that "discriminatory tests are impermissible unless shown, by professionally accep table methods, to be `predicative of or significantly cor related with important elements of work behavior which comp rise or are relevant to the job or jobs for which candid ates are being evaluated.' " Id. at 431 (quoting 29 CFR S 16 07.4(c)). In so holding, the Court noted that the Equal Emplo yment Opportunity Commission (EEOC) Guidelines for professional standards of test validation are entit led to great deference in determining whether an employer has demonstrated that its requirements are job related. Id. at 430-31. The Court rejected the employer's validatio n studies as inadequate in several respects under the EEOC Guidelines. For example, the Court rejected the stu dies because they focused on the most qualified employee s near the top of the line of progression, stating:

The fact that the best of those employees wo rking near the top of a line of progression score well on a test does not necessarily mean that that test, or some particular cutoff score on the test, is a permissible m easure of the minimal qualifications of new workers enteri ng lower level jobs.

Id. at 434. The Court accordingly held that conside ration must be given to the possible use of testing as a p romotion device rather than as a screen for entry into lower level

11jobs. Id. Due to several inadequacies of the employ er's

validation studies, the Court held that the employe r had failed to show that its requirements were job relat ed to the position in question. Id. at 435-36.

The next Title VII case to raise the business neces sity

issue for the Court's consideration was Dothard v. Rawlinson, 433 U.S. 321 (1977).10 In Dothard, femal e applicants challenged a prison's minimum height and weight requirements for its prison guard positions as violative of Title VII. On the issue of business ne cessity, the Court made clear that "a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII ch allenge." Dothard, 433 U.S. at 332 n.14. The Court rejected t he prison's assertion that height and weight requireme nts have a relationship to the unspecified amount of strengt h essential to effective job performance, holding tha t if strength is a bona fide job related quality, the pr ison could test for it directly by adopting and validating a f airly administered strength test. Id. at 331-32.

The Court's next definitive statement on the busine ss necessity doctrine is found in Wards Cove Packing C o., Inc. v. Atonio, 490 U.S. 642 (1989), where a majority of the Court deviated from its previous business necessity jurisprudence in adopting a more liberal test for b usiness necessity.11 According to the Court:

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10. Prior to Dothard, the Court included some langu age related to the business necessity doctrine in Washington v. Davis, 426 U.S. 229 (1976), an equal protection case. Because Washington is not a Title VII case, however, we cannot treat the language in Washington as reflective of the pre-Wards Cove business necessity doctrine applicab le to Title VII cases.

11. Two cases prior to Wards Cove forecast some of the changes to come. In New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979), the Court disposed of a Title VII case by holding that the pl aintiffs failed to establish a prima facie case of disparate impact. T he Court, however, commented on the business necessity doctrine in dic ta. In a footnote, the Court stated that even if a prima facie case ha d been established, the employer would have shown business necessity by establishing that its practice significantly serves its legitimate bu siness goals of safety

and efficiency. Beazer, 440 U.S. at 587 n.31. Similarly , a plurality opinion

in

12[T]he dispositive issue is whether a challen ged practice

serves, in a significant way, the legitimate employment goals of the employer. The touchstone of thi s inquiry is a reasoned review of the employer's justific ation for his use of the challenged practice. A mere insub stantial justification in this regard will not suffic e, because such a low standard of review would permit discrimination to be practiced through the u se of spurious, seemingly neutral employment pract ices. At the same time, though, there is no requireme nt that the challenged practice be "essential" or "indispensable" to the employer's business f or it to

pass muster . . . .

Wards Cove, 490 U.S. at 659 (citations omitted). In addition, the Court made clear that at the business necessity stage of Title VII litigation, the employ er bears only the burden of production; the burden of persua sion remains on the disparate impact plaintiff at all ti mes. Id. As we have previously recognized, the Wards Cove stand ard may reasonably be viewed as a departure from the mo re stringent business necessity standard under Griggs and its progeny. See Newark Branch, N.A.A.C.P. v. Town of Harrison, New Jersey, 940 F.2d 792, 803 (3d Cir. 1991)(noting that Wards Cove "arguably diluted the business necessity burden" under Griggs).

B.

In response to Wards Cove, Congress enacted the Civ il Rights Act of 1991. One of the primary purposes of the Act was "to codify the concepts of `business necessity' and `job related' enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Su preme

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Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (19 88), suggested that employers could meet their burden of establishing b usiness necessity simply by advancing a legitimate business reason fo r the practice in question. Watson, 487 U.S. at 998. While the langua ge in these cases clearly foreshadowed the Court's holding in Wards C ove, this language had never been embraced by a majority of the Court as the binding standard for business necessity prior to Wards Cove

.

13Court decisions prior to Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989)." Civil Rights Act of 1991, Pub L. No. 102-166, S 3, 105 Stat. 1071, 1071 (1992). As part of this codification of Griggs, the Act made clear that bot h the burden of production and the burden of persuasion i n establishing business necessity rest with the emplo yer. See 42 U.S.C. S 2000e-2(k).

In addition, the Act codified the business necessit y doctrine by using the following language:

An unlawful employment practice based on di sparate impact is established under this subchapter only if--

(i) a complaining party demonstrates that a respondent uses a particular employment prac tice that causes a disparate impact on the basis of ra ce, color, religion, sex, or national origin and the re spondent fails to demonstrate that the challenged practice is job related for the position in question and con sistent with business necessity; or

(ii) the complaining party makes the demons tration described in subparagraph (C) with respect t o an alternative employment practice and the resp ondent refuses to adopt such alternative employment practice.

42 U.S.C. S 2000e-2(k)(1)(A)(emphasis added). The A ct further instructs that in interpreting its business necessity language, "[n]o statements other than the interpret ive memorandum . . . shall be considered legislative hi story of, or relied upon in any way as legislative history . .. ." Civil Rights Act of 1991, Pub L. No. 102-166, S 105(b), 1 05 Stat. 1071, 1075 (1992). The interpretive memorandum referenced in this portion of the Act states in rel evant part:

The terms "business necessity" and "job rela ted" are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 4 01 U.S. 424 (1971), and in the other Supreme Court d ecisions prior to Wards Cove Packing Co. v. Atonio, 4 90 U.S. 642 (1989).

137 Cong. Rec. 28,680 (1991). After the passage of the Act, proponents of both a strict test for business neces sity and

14a more liberal requirement claimed victory in the s tandard

adopted by the Act.12

III.

The Supreme Court has yet to interpret the "job rel ated for the position in question and consistent with bu siness necessity" standard adopted by the Act. In addition , our sister courts of appeals that have applied the Act' s standard to a Title VII challenge have done so with little analysis. See, e.g., Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1117-18 (11th Cir. 1993)(noting that Civil Ri ghts Act of 1991 statutorily reversed Wards Cove but ruling in favor of employer because practice was demonstrably neces sary to meet an "important business goal"); Bradley v. P izzaco of Nebraska, Inc., 7 F.3d 795, 797-98 (8th Cir. 1993)( noting that Griggs standard was reinstated by the Act and holding that employer failed to meet Griggs standard).

Because the Act proscribes resort to legislative hi story with the exception of one short interpretive memora ndum endorsing selective caselaw, our starting point in interpreting the Act's business necessity language must be that interpretive memorandum. The memorandum makes clear that Congress intended to endorse the busines s necessity standard enunciated in Griggs and not the Wards Cove interpretation of that standard. By Congress' distinguishing between Griggs and Wards Cove, we mu st conclude that Congress viewed Wards Cove as a signi ficant departure from Griggs. Accordingly, because the Act clearly chooses Griggs over Wards Cove, the Court's interpr etation

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12. See Andrew C. Spiropoulos, Defining the Busines s Necessity Defense to the Disparate Impact Cause of Action: Finding th e Golden Mean, 74 N.C. L. Rev. 1479, 1516-20 (1996)(outlining the res pective positions of both sides to the debate); compare also Michael Car vin, Disparate Impact Claims Under the New Title VII, 68 Notre Dame L. Re v. 1153 (1993)(arguing that Wards Cove is still good law af ter Civil Rights Act of 1991); with Susan S. Grover, The Business Necessity Defense in Disparate Impact Discrimination Cases, 30 Ga. L. Re v. 387 (1996)(arguing for a strict business necessity standard under the Act); Note, The Civil Rights Act of 1991: The Business Necessity Standard , 106 Harv. L. Rev. 896 (1993)(asserting that Wards Cove does not survi ve the Act).

15of the business necessity standard in Wards Cove d oes not

survive the Act.13

We turn now to articulate the standard for business necessity - one most consistent with Griggs and its preWards Cove progeny. The laudable mission begun by t he Court in Griggs was the eradication of discriminati on through the application of practices fair in form b ut discriminatory in practice by eliminating unnecessa ry barriers to employment opportunities. In the contex t of a hiring exam with a cutoff score shown to have a discriminatory effect, the standard that best effec tuates this mission is implicit in the Court's application of t he business necessity doctrine to the employer in Grig gs, i.e., that a discriminatory cutoff score is impermissible unless shown to measure the minimum qualifications necessa ry for successful performance of the job in question. Only this standard can effectuate the mission begun by the Co urt in Griggs; only by requiring employers to demonstrate that their discriminatory cutoff score measures the mini mum qualifications necessary for successful performance of the job in question can we be certain to eliminate the use of excessive cutoff scores that have a disparate impac t on minorities as a method of imposing unnecessary barr iers to employment opportunities.

The evolution of the Court's articulation of the bu siness necessity doctrine in both Albemarle and Dothard re inforces

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13. We are cognizant that a contrary argument has b een advanced in

which it is asserted that Wards Cove remains the co ntrolling standard. See Carvin, supra note 12, at 1157-64. Pursuant to the argument, the business necessity standard announced in Wards Cove simply clarified Griggs and therefore is not inconsistent with the A ct's command to apply the standard enunciated in Griggs. In addition, it is asserted that due to the legislative history of the Act, it would be imp roper to apply a strict business necessity standard. This argument, however , ignores two important aspects of the Act which constrain our in terpretation of the standard adopted. First, the interpretive memorandu m's distinction between Griggs and Wards Cove casts significant dou bt on the assertion that Congress read Wards Cove as simply a clarifica tion of Griggs. Second, the Act precludes us from considering the l egislative history upon which this argument relies for support. Accord ingly, we find this argument to be devoid of merit.

16the conclusion that this standard is both implicit in Griggs

and central to its mission. In Albemarle, the Court explained that discriminatory tests must be validat ed to show that they are "predictive of . . . important e lements of work behavior which comprise . . . the job . . . fo r which candidates are being evaluated" and that the scores of the higher level employees do not necessarily validate a cutoff score for the minimum qualifications to perform the job at an entry level. Albemarle, 422 U.S. at 431, 434. Th is is simply another way of saying that discriminatory cu toff scores must be validated to show they measure the minimum qualifications necessary for successful performance of the job. Similarly, in Dothard, the Court made clear that "a discriminatory employment practi ce," such as a discriminatory cutoff score on an entry l evel exam, "must be shown to be necessary to safe and ef ficient job performance to survive a Title VII challenge." Dothard,

433 U.S. at 332 n.14.

Taken together, Griggs, Albemarle and Dothard teach that in order to show the business necessity of a discri minatory cutoff score an employer must demonstrate that its cutoff measures the minimum qualifications necessary for successful performance of the job in question. Furt hermore, because the Act instructs us to interpret its busin ess necessity language in conformance with Griggs and i ts preWards Cove progeny, we must conclude that the Act's business necessity language incorporates this stand ard.

Our conclusion that the Act incorporates this stand ard is further supported by the business necessity languag e adopted by the Act. Congress chose the terms "job r elated for the position in question" and "consistent with business necessity." Judicial application of a standard focu sing solely on whether the qualities measured by an entr y level exam bear some relationship to the job in question would impermissibly write out the business necessity pron g of the Act's chosen standard. With respect to a discrimina tory cutoff score, the business necessity prong must be read to demand an inquiry into whether the score reflects t he minimum qualifications necessary to perform success fully the job in question. See also EEOC Guidelines, 29 C .F.R. S1607.5 (H) (noting that cutoff scores should "be s et so as

17to be reasonable and consistent with normal expecta tions

of acceptable proficiency within the work force.").

In addition, Congress' decision to emphasize the importance of the policies underlying the disparate impact theory of discrimination through its codification s upports application of this standard to discriminatory cuto ff scores. The disparate impact theory of discrimination comba ts not intentional, obvious discriminatory policies, but a type of covert discrimination in which facially neutral pra ctices are employed to exclude, unnecessarily and disparately, protected groups from employment opportunities. Inh erent in the adoption of this theory of discrimination is the recognition that an employer's job requirements may incorporate societal standards based not upon neces sity but rather upon historical, discriminatory biases. 14 A business necessity standard that wholly defers to a n employer's judgment as to what is desirable in an e mployee therefore is completely inadequate in combating cov ert discrimination based upon societal prejudices. Only a business necessity doctrine that examines discrimin atory cutoff scores in light of the minimum qualification s that are necessary to perform the job in question successful ly can address adequately this subtle form of discriminati on.15

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14. For an interesting discussion on male-oriented biases in the labor market see Maxine N. Eichner, Getting Women Work Th at Isn't Women's Work: Challenging Gender Biases in the Workplace Un der Title VII, 97 Yale L.J. 1397 (1988). See also, Hurley v. The Atla ntic City Police Dept., ___ F.3d. ___, ___ n.5, 1999 WL 150301 (3d Cir. 199 9)(noting egregious sexual harassment to which a female police officer was subjected by her male colleagues); Mazus v. Department of Transp., C om. of Pa., 629 F.2d 870, 876 (3d Cir. 1980)(Sloviter, J., dissenting)(n oting allegations demonstrating prevalent male attitude that construc tion work is not the "type of work" women should perform).

15. We need not be concerned that implementation of this standard will result in forcing employers to adopt quotas, a resu lt that would be

inconsistent with the mandates of Title VII. If an employer can demonstrate that its discriminatory cutoff score re flects the minimum qualifications necessary for successful job perform ance, it will be able

to continue to use it. If not, the employer must aband on that cutoff score, but is free to develop either a non-discriminatory practice which furthers its goals, or an equally discriminatory practice th at can meet this

18Accordingly, we hold that the business necessity

standard adopted by the Act must be interpreted in accordance with the standards articulated by the Su preme Court in Griggs and its pre-Wards Cove progeny whic h demand that a discriminatory cutoff score be shown to measure the minimum qualifications necessary for th e successful performance of the job in question in or der to survive a disparate impact challenge.16

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standard. Nothing in the Griggs business necessity standard requires employers to hire employees in numbers to reflect t he ethnic, racial or gender make-up of the community.

The following example based upon the facts of this case illustrates this point. Assuming that SEPTA's 1.5 mile run has a dis parate impact on

women and that SEPTA can not show that the 12 minut e cutoff measures the minimum aerobic capacity necessary to be a successful transit officer, it does not follow that SEPTA woul d then be required to hire women in equal proportion to men. Several opti ons would be available to SEPTA. For example, SEPTA could: 1) ab andon the test as a hiring requirement but maintain an incentive prog ram to encourage an increase in the officers' aerobic capacities; 2) va lidate 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-d iscriminatory test for excessive levels of aerobic capacity such as a test that would exclude 80% of men as well as 80% of women through separate aerobic capacity cutoffs for the different sexes. Each of these opti ons would help SEPTA achieve its stated goal of increasing aerobic capac ity without running afoul of Title VII and none of these options requir e hiring by quota.

16. Relying upon Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th

Cir. 1972), and like cases from our sister courts of app eals, the dissent asserts that this standard should not apply to SEPT A because the job of SEPTA transit officer implicates issues of public s afety. Under the Act, however, our interpretation of the business necessi ty language is limited to "the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Su preme Court decisions prior to Wards Cove Packing Co. v. Atonio , 490 U.S. 642 (1989)." See 137 Cong. Rec. 28,680 (1991)(emphasis added). Because the Supreme Court never adopted the holding of Spurlock prior to Wards Cove, its is clear that, under the Act, we are not to consider Spurlock as authoritative. Furthermore, if Congress had intende d to endorse the holding of Spurlock, it could have done so affirmat ively. Accordingly, because the Act limits our interpretation to Suprem e Court

19IV.

Although the District Court purported to apply the Act's "job related to the position in question and consis tent with business necessity" standard to SEPTA's cutoff scor e on its 1.5 mile run, it is clear from the District Court's memorandum opinion that it did not apply the standa rd we have found to be implicit in Griggs and incorporate d by the Act. The District Court rejected the formulation of the Griggs standard found in Dothard, characterizing it as dicta, and relied instead upon language found in Ne w York City Transit Auth. v. Beazer, 440 U.S. 568 (1979). As our prior discussion makes clear,17 the Beazer language is dicta and the Dothard standard is binding under the Act. Moreover, the Beazer dicta upon which the District Court relied mirrors the standard adopted by Wards Cove. Compare Lanning, 1998 WL 341605 at *54 (noting that in Beazer, the Court "implicitly approves employment practices that significantly serve, but are neither required by nor necessary to, the employer's legitimate busi ness interests") with Wards Cove, 490 U.S. at 659 (stati ng that

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jurisprudence and does not otherwise endorse Spurlo ck, we are not at liberty to adopt the holding of Spurlock at this ju ncture. Moreover, to

the extent that Spurlock and other cases from our siste r courts of appeals can be read to suggest that minimum qualifications do not apply to certain types of employment, these cases are incons istent with the teachings of Griggs and are accordingly uninformati ve under the Act.

Furthermore, to the limited extent that the Supreme Court's pre-Wards Cove jurisprudence instructs that public safety is a legitimate consideration, application of the business necessit y standard to SEPTA is consistent with that jurisprudence because the s tandard itself takes public safety into consideration. If, for example, SEPTA can show on remand that the inability of a SEPTA transit office r to meet a certain aerobic level would significantly jeopardize public safety, this showing

would be relevant to determine if that level is nec essary for the successful performance of the job. Clearly a SEPTA officer who poses a significant risk to public safety could not be cons idered to be performing his job successfully. We are accordingly confident that application of the business necessity standard to SEPTA is fully consi stent with the Supreme Court's pre-Wards Cove jurisprudence as req uired by the Act.

17. See supra note 11.

20standard is "whether a challenged practice serves, in a

significant way, the legitimate employment goals of the employer" and noting that there is no requirement t hat the practice be essential). As we previously stated, th e Wards

Cove standard does not survive the Act.

The District Court's application of its understandi ng of business necessity to SEPTA's business justificatio n further illustrates that the District Court did not apply t he correct legal standard. As an initial matter, the District Court seemed to conclude that Dr. Davis' expertise alone is sufficient to justify the 42.5 mL/kg/min aerobic ca pacity cutoff measured by the 1.5 mile run.18 This conclu sion disregards the teachings of Griggs, Albemarle and D othard in which the Court made clear that judgment alone i s

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18. While relying predominately upon Dr. Davis' exp ertise, the District Court does point to a study which Dr. Davis complet ed for Anne Arundel County, Maryland in which he concluded that a 42.5 mL/kg/min aerobic capacity predicted success as an Anne Arundel Count y police officer. Absent a finding that the work of an Anne Arundel C ounty police officer is comparable to SEPTA transit officer work, afindi ng the District Court did not make, reliance on this validation study is misplaced. See 29 C.F.R. S 1607.7 (B)(2); see also 29 C.F.R. S 1607.7 (B)(3)(explaining that validation studies created for other employers must also include a study of "test fairness"). Furthermore, it is unclear fro m Dr. Davis' report whether the Anne Arundel study's 42.5 mL/kg/min cut off actually measures for qualities significant to SEPTA transit police performance. Compare App. at 3134 (Davis Report) (noting that 42 .5 mL/kg/min level for Anne Arundel study is significant for carrying an unspecified amount of weight and generally effecting arrests) with App . at 3132 (Davis Report) (stating "[t]ransit police officers are mor e likely to have

incidents come to them, as opposed to responding to the scene of an event. By mission, the presence of the officer is that of a d eterrent, maintaining maximum visibility. Occasionally, officers will com e upon criminal activities such as assaults or robberies, but for t he most part, the

officer will attempt to control a situation such as disorde rly conduct or force compliance (paying fares) without having to make an arrest."); see also App. at 3139 (Davis Report)(quoting experienced off icer as stating "[t]he most important factors in my opinion of being a goo d officer is to be able to think clearly at all times an [sic] verbalize an d or articulate when dealing with all people . . . . Running quickly is physically demanding, although in the transit system, most dealings are c lose, physical altercations."). In addition, it is unclear from th e record whether the Anne Arundel study itself was properly validated.

21insufficient to validate an employer's discriminato ry

practices.19 More fundamentally, however, nowhere i n its extensive opinion did the District Court consider w hether Dr. Davis' 42.5 mL/kg/min cutoff reflects the minim um aerobic capacity necessary to perform successfully the job of SEPTA transit police officer.

Instead, the District Court upheld this cutoff beca use it was "readily justifiable." Lanning, 1998 WL 341605 at *57.20 The validation studies of SEPTA's experts upon whic h the District Court relied to support this conclusion de monstrate

the extent to which this standard is insufficient u nder the Act. The general import of these studies is that th e higher an officer's aerobic capacity, the better the offic er is able to perform the job. Setting aside the validity of thes e studies,

this conclusion alone does not validate Dr. Davis' 42.5 mL/kg/min cutoff under the Act's business necessity standard.21 At best, these studies show that aerobi c

(Text continued on page 24)

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19. The danger of allowing an employer to carry its burden by relying simply upon an expert's unvalidated judgment as to an appropriate cutoff score in a testing device is illustrated by this case. In determining an appropriate cutoff for aerobic capacity, Dr. Dav is rejected the SMEs' estimate of the minimal qualifications necessary to perform the job even though these SMEs were experienced transit officers . Dr. Davis then

determined that "a SEPTA transit officer needs an a erobic capacity of 50 mL/kg/min to successfully perform a number of tasks ." Lanning, 1998 WL 341605 at *16 (emphasis added). Dr. Davis, howev er, revised this requirement, finding that "the goals of SEPTA could be satisfied by using a 42.5 mL/kg/min standard" after determining that t he higher limit

would have a "draconian" effect on women. Id. There is no indication in the District Court's opinion as to how Dr. Davis de termined that the lower standard would be sufficient. Where, as here, the cutoff score chosen has a discriminatory disparate impact, Grigg s prohibits the establishment of exactly this type of arbitrary bar rier to employment opportunities.

20. The District Court seems to have derived this s tandard from the Principles for the Validation and Use of Personnel Selection Procedures ("SIOP Principle"), principles published by the Soc iety for Industrial and Organizational Psychology as a professional guideli ne for conducting validation research and personnel selection. To the extent that the SIOP Principles are inconsistent with the mission of Gri ggs and the business necessity standard adopted by the Act, they are not instructive.

21. The Court has cautioned that studies done in an ticipation of litigation to validate discriminatory employment te sts that have already

22been given must be examined with great care due to the danger of lack

of objectivity. Albemarle, 422 U.S. at 433 n.32. We also have warned in a disparate impact context that "the story statisti cs tell depends, not unlike beauty, upon the eye and ear of the beholder " and that "we must apply a critical and cautious ear to one dimensiona l statistical presentation." Bryant v. International Sch. Servs., Inc., 675 F.2d 562,

573 (3d Cir. 1982). A critical evaluation of the statis tical studies relied

upon by the District Court in this case, reveals several aspects of these

studies that we find to be, at a minimum, disconcerting.

The following concerns are only a representative sa mple of possible deficiencies in these studies: 1) While the ability to make an arrest may be an important aspect of the job, the absolute num ber of arrests or "arrest rates" do not necessarily correlate with su ccessful job performance. See App. at 3132 (noting that SEPTA of ficer should generally attempt to control a situation without ha ving to make an arrest); 2) The study on arrests and arrest rates e xamined a disproportionately large number of officers with an aerobic capacity over 42 mL/kg/min compared to the number of officers wit h an aerobic capacity under that level which likely skewed the r esults. See, e.g., App. at 3053 (comparing arrests of 231 officers with aer obic capacities under the 42 mL/kg/min with arrests of 813 officers with aerobic capacities over the 42 mL/kg/min); see also, 29 C.F.R.S 1607.1 4(B)(6)(noting that "[r]eliance upon a selection procedure which is sig nificantly related to a criterion measure, but which is based upon a study involving a large number of subjects and has a low correlation coeffi cient will be subject to close review if it has a large adverse impact.") ; 3) The comparison of aerobic capacity with commendations is not helpful absent finding as to the subjective considerations involved in awarding commendations. See Albemarle, 422 U.S. at 432-33; 4) The studies' emph asis on arrests for "serious crimes" is suspect; these arrests account for only 7% of all arrests and therefore represent only a small aspect of job. See generally 29 C.F.R. S 1607.14(B)(6)(noting that reliance on s ingle selection instrument which is related to only one of many job duties will be subject to close review); 5) SEPTA's table on thefi eld performance of its

officers belies the contention that there is a stri ct linear relationship

of arrests to aerobic capacity; officers at less than 37 mL/kg/min had an average arrests of 13.6 compared to officers with a t least a 48 mL/kg/min level who had average arrests of 13.9. Se e App. at 3065 (Defendant's Exhibit 52D); 6) The study on the aver age aerobic capacity of perpetrators has little meaning unless SEPTA can show that arrests of these perpetrators are typically aerobic contests; because SEPTA police are armed, such a showing is unlikely.

23capacity is related to the job of SEPTA transit off icer. A

study showing that "more is better," however, has n o bearing on the appropriate cutoff to reflect the mi nimal qualifications necessary to perform successfully th e job in question.

Dr. Siskin's testimony is particularly instructive on this point. Dr. Siskin testified that in view of the lin ear relationship between aerobic capacity and the arres t parameters, any cutoff score can be justified since higher aerobic capacity levels will get you more field per formance (i.e., "more is better"). See Lanning, 1998 WL 3416 05 at *41. Under the District Court's understanding of bu siness 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 ph ysical

abilities entrance exam in an effort to exclude vir tually all women by justifying this facially neutral yet discr iminatory practice on the theory that more is better.22 This result contravenes Griggs and demonstrates why, under Grig gs, a discriminatory cutoff score must be shown to measur e the

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Because we are remanding for the District Court to reconsider this evidence in light of the Griggs standard, we need n ot rule on whether any of the District Court's prior findings as to th ese studies were clearly erroneous. We comment here on the validity of these studies only to

draw the District Court's attention to these concer ns and to encourage

the District Court to take a critical look at these studies, if necessary,

on remand.

22. Such a result has the potential to have a signi ficant detrimental impact on the amount and type of employment opportu nities available to women. Obviously, under a "more is better" theory, employers such as police departments, fire departments and correction al facilities could develop physical tests with unnecessarily high cuto ffs that would effectively exclude women from their ranks. Perhaps less obvious, however, is the impact that this result could have on industries where strength even minimally related to the job in quest ion. For example, all companies engaged in delivery, construction or any other type of physical labor would be permitted to develop unnece ssary strength requirements on the theory that "more is better" or "the stronger the worker, the faster the job gets done." This result is clearly unacceptable given the policies underlying both Title VII and th e disparate impact theory of discrimination.

24minimum qualifications necessary to perform success fully

the job in question.23

V.

For the foregoing reasons, it is clear to us that t he District Court did not employ the business necessit y standard implicit in Griggs and incorporated by the Act which requires that a discriminatory cutoff score b e shown to measure the minimum qualifications necessary for successful performance of the job in question in or der to survive a disparate impact challenge. We will there fore vacate the judgment of the District Court and reman d this appeal for the District Court to determine whether SEPTA has carried its burden of establishing that its 1.5 mile run measures the minimum aerobic capacity necessary to perform successfully the job of SEPTA transit polic e officer.24

Because this is the first occasion we have had to c larify the

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23. This is not to say that studies that actually p rove that "more is better" are always irrelevant to validation of an e mployer's discriminatory practice. For example, a content validated exam, su ch as a typing exam for the position of typist, which demonstrates that the applicants who score higher on the exam will exhibit better job pe rformance may justify a rank-ordering hiring practice that is discriminat ory. In such a case, a validation study proving that "more is better" may suffice to validate the rank-order hiring. This is true, however, in only t he rarest of cases where the exam tests for qualities that fairly repr esent the totality of a job's responsibilities. It is unlikely that such a study could validate

rankhiring with a discriminatory impact based upon phys ical attributes in complex jobs such as that of police officer in whic h qualities such as intelligence, judgment, and experience surely play a critical role. This

is especially true in SEPTA's case, where the record i ndicates that SEPTA patrol officers encounter "running assists," the mo st strenuous task upon which SEPTA's aerobic capacity testing predomi nately was justified, at an average rate of only twice per yea r. Compare Lanning, 1998 WL 341605 at *5 (finding that SEPTA has approx imately 380 running assists per year) with id. at *27 (noting t hat SEPTA has 190 patrol officers).

24. The District Court rejected as irrelevant the p laintiffs' evidence

that incumbent officers had failed the physical fitness test yet successfully performed the job and that other police forces func tion well without an aerobic capacity admission test. See Lanning, 1998 WL 341605 at *68- *70. Under the standard implicit in Griggs and inco rporated into the Act,

this evidence tends to show that SEPTA's cutoff sco re for aerobic capacity does not correlate with the minimum qualif ications necessary toperform successfully the job of SEPTA transit offic er. Accordingly, this

evidence is relevant and should be considered by th e District Court on

remand.

25Act's business necessity standard, on remand the Di strict

Court may wish to exercise its discretion to allow the parties to develop further the record in keeping wi th the

standard announced here.

26WEIS, Circuit Judge, dissenting:

The "minimum qualifications" criterion of business justification does not apply to all types of employ ment. When public safety is at stake, a lighter burden is placed on employers to justify their hiring requirements. Because I believe that the latter standard applies in this case, I

would affirm.

I.

Concerned about its inability to control crime on i ts property, SEPTA instituted a three-pronged attack o n the problem. It added a substantial number of officers, implemented a zone method of patrol, and adopted standards to improve the generally poor physical co ndition of its officers. Unlike many metropolitan police departments, SEPTA officers are deployed alone and on foot, engaging in physical activities more frequent ly than other law enforcement agencies.

The patrol zones present significant variations in conditions that affect the physical exertion of off icers in the performance of their duties. Zone One, for example, has a climb of 30 to 50 steps from street level. Zone Thr ee, a mixture of above- and below-ground locations, borde rs a large shopping mall, featuring retail theft and pur suits that lead into the SEPTA transit system. Zone Five, whic h includes sports complexes, is characterized by long

distances between stations. Zone Six includes the T emple 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 divi ded into two categories, "officer assists" and "officer back ups." An "assist" requires officers to respond immediately. Often the only method available to get to the scene quickly i s a run of five to eight city blocks. An officer responding to an "assist" must preserve enough energy to deal effect ively with a situation once arriving on the scene. SEPTA averages about 380 running assists per year. "Backups" are n ot as critical as "assists," so officers generally use a "paced jog." SEPTA averages about 1,920 "backups" annually.

27For help in attaining its fitness goals, SEPTA turn ed to

Dr. Paul Davis, an acknowledged expert in the field who

had recommended corrective measures for numerous la w enforcement and government agencies. At the time Dr

. Davis began his research for SEPTA, an officer's eq uipment load was 12 pounds; it is now nearly 26 pounds. Dr. Davis found that officers need "sound, intact, disease-fr ee cardiovascular system[s]" to effectively perform th eir jobs. These requirements implicate aerobic capacity, i.e. , the ability of the body to utilize oxygen during sustai ned physical activities such as running, swimming, and cycling. Aerobic capacity is commonly measured in units of milliliters of oxygen per kilogram of body weight p er minute -- "mL/kg/min," or "mL."

SEPTA officers typically run or jog on a daily basi s from three to eight city blocks for periods of three to ten minutes. They also engage in stair climbing, which requires a capacity of 54 mL. In light of this and other evi dence, Dr.

Davis concluded that SEPTA transit officers need an aerobic capacity of 50 mL. After determining that s uch a level would have a "draconian" effect on female app licants, however, Dr. Davis lowered his recommendation to 42 .5 mL. That capacity could be demonstrated by running 1.5 miles in 12 minutes, a test that was adopted for ap plicants.

Dr. Davis had done a similar study for a fire depar tment in St. Paul, Minnesota, which -- in setting a stand ard of 45 mL -- required applicants to run 1.5 miles in 11 mi nutes and 40 seconds. Eighty percent of male applicants a nd 76% of female applicants passed this test.

In addition to Dr. Davis' testimony, SEPTA also pre sented evidence from other experts to demonstrate a statis tically significant correlation between aerobic capacity an d the number of arrests made by individual SEPTA officers

. Furthermore, of 207 commendations, 96% went to offi cers with an average capacity of 46 mL. Of these awards, 198 involved arrests, and 116 involved a foot pursuit, use of force or other physical exertion. Another study ind icated that 51.9% of offense perpetrators had a capacity o f 48 mL or higher, with only 27% having lower than a 42 mL rating.

The record demonstrates that a smaller percentage o f female applicants passed the running test than male s, but

28that nearly all women who trained for it were able to pass.

The named plaintiffs and some of the class members who failed demonstrated, for the most part, a "cavalier " attitude towards the running test. Videotapes showed some of these applicants walking at the halfway point, either bec ause they were indifferent or unable to run for even tha t short a period of time. Thus, although there was a signific ant disparity between the pass-fail rates of male and f emale applicants, the extent of the difference appears to have been exaggerated to some extent by the approach tak en by some of the applicants.

A physiologist, Dr. Lynda Ransdell, testified that 40% of all women starting at an aerobic capacity of 35 to 37 mL can train to pass the running test in eight weeks, and that 10% of all women between 20 and 29 years of age can do so without any training. She concluded that the ave rage sedentary woman can achieve SEPTA's performance standard with only moderate training. SEPTA sent applicants a letter outlining recommended training techniques that Dr. Ransdell testified were adequat e.

Plaintiffs introduced the testimony of Dr. William McArdle, who suggested the use of a "relativefitnes s" test in which all applicants would be required to meet t he 50th percentile of aerobic capacity for their gender-- approximately 42 mL for males, and 36 mL for female s. However, Dr. Robert Moffatt, a defense expert who conducted tests of the aerobic capacity necessary t o perform a SEPTA officer's duties, disagreed. He sta ted that female officers with a capacity of 36 mL would not be able to capably perform their duties after running to an "assist" or a "backup." Dr. Bernard Siskin, another defense expert,

found that the arrest rate for females with a 36 mL capacity was significantly lower than that of males with a 4 2 mL capacity.

The District Court rejected Dr. McArdle's proposal because it would not serve SEPTA's business goal of providing a police force capable of performing the physical requirements of the job nearly as well as the exist ing test. Instead, the court found that "Dr. Davis' study, st anding alone, met the professional standards for construct

validation and satisfies defendant's burden of

29demonstrating job relatedness and business necessit y."

Moreover, his study had sufficient empirical suppor t for an aerobic capacity requirement of 42.5 mL.

II.

The dispute in this case centers on the applicable standard of business justification under the Civil Rights Act of 1991. See Pub. L. No. 102-166, Title I,S 105(a), 105 Stat. 1074-75 (adding 42 U.S.C. S 2000e-2(k)). The pertin ent section provides: "An unlawful employment practice based on disparate impact is established . . . only if-- [the] complaining party demonstrates that a respondent us es a particular employment practice that causes a dispar ate impact on the basis of . . . sex . . . and the resp ondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with bu siness necessity[.]" 42 U.S.C. S 2000e-2(k)(1)(A).

This addition to Title VII was passed in response t o the Supreme Court's decision in Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989). In that case, the C ourt held that after a plaintiff makes a prima facie showing of disparate impact, the defendant bears the burden to produce evidence of business justification. See id. at 659. The burden of persuasion, however, remains at all t imes with the plaintiff. See id. As to what showing woul d satisfy business justification, the Court held that "the di spositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Id. However, "there is no requirement th at the challenged practice be `essential' or `indispensabl e' to the employer's business for it to pass muster." Id.

Some members of Congress were displeased with the result in Wards Cove and argued for a stricter stan dard of business justification based on their reading of pr e-Wards Cove cases. After two years of legislative struggle , Congress and the President agreed upon a compromise bill. Wh ether the ambiguous language of the statute accomplished that purpose has been the subject of lively debate.1

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1. In addition to the law review commentaries cited by the majority, see also Rosemary Alito, Disparate Impact Discriminatio n Under the 1991

30The 1990 bill, which had been vetoed by the Preside nt,2

had used the phrase "required by business necessity ," rather than "consistent with business necessity," a s used in

the 1991 Act. The substitution of the word "consist ent" was considered to indicate a standard less stringent th an would "required." In that light, a fair reading of the 19 91 Act is "the challenged practice is job related for the pos ition in question and in harmony with business necessity."

It may fairly be said that the language ultimately adopted in the 1991 Act reflects an "agreement to disagree" and a return of the dispute to the courts for resolution. In short, unable to muster a veto-proof majority for either v iew, Congress "punted." This conclusion is underscored b y Congress' highly unusual admonition that the courts consider only a designated "interpretive memorandum " as legislative history, rather than the more elaborate committee reports and other materials that customar ily reveal the extent of the controversy between variou s views.

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Civil Rights Act, 45 Rutgers L. Rev. 1011, 1033 (19 93) ("Only . . . cases requiring proof of job-relatedness and a reasonable need for the challenged practice accord[ ] with both the statuto ry language of the 1991 Act and the applicable Supreme Court precedent ."); Kingsley R. Browne, The Civil Rights Act Of 1991: A "Quota Bill ," A Codification Of Griggs, A Partial Return To Wards Cove, Or All Of T he Above?, 43 Case W. Res. L. Rev. 287, 349 (1993) ("business necessit y" has the same meaning as the Wards Cove phrase "serves, in a sign ificant way"); Linda Lye, Comment, Title VII's Tangled Tale: The Erosion and Confusion of Disparate Impact and the Business Necessity Defense , 19 Berkeley J. Employment & Lab. L. 315, 358 (1998) (a challenged practice must be a "reasonable predictor of effective performance of j ob duties," defined in light of "important business goals").

2. The fear of quota hiring was behind the Presiden t's refusal to sign

earlier versions of the bill. See Statement of Pres ident George Bush Upon Signing S. 1745, reprinted in 1991 U.S.C.C.A.N. 768 (stating that the Act promotes the goals of ridding discrimination, allow ing employers to hire on the "basis of merit and ability without the fear of unwarranted litigation," without leading to quotas or incentive s for needless litigation). For a discussion of the drafting of the Civil Right s Act of 1991, see 2

Lex K. Larson, Employment Discrimination S 23.04[1] (2d ed. 1999). For analysis of the rejected 1990 bill, see Cynthia L. Alexander, The Defeat of the Civil Rights Act of 1990: Wading Through the Rhetoric In Search of Compromise, 44 Vand. L. Rev. 595 (1991).

31See Pub. L. No. 102-166, Title I, S 105(b), 105 Sta t. 1075.

The interpretive memorandum states that: "The terms `business necessity' and `job related' are intended to reflect the concepts enunciated by the Supreme Court in Gri ggs v. Duke Power Co., 401 U.S. 424 (1971), and in the oth er Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)." 137 Cong. Rec. S15 276 (daily ed. Oct. 25, 1991).

Congress' reference to the Griggs line of Supreme C ourt decisions, however, does little to clear the air be cause the language in those opinions has caused confusion. 3 The problem can ultimately be traced back to Griggs its elf. In that case, which involved power-plant jobs, the Cou rt held that a high school completion requirement and gener al intelligence tests that disproportionately disquali fied black applicants were not significantly job related. The Court said: "The touchstone is business necessity." Grigg s, 401 U.S. at 431. However, the very next sentence reads, "[i]f an employment practice . . . cannot be shown to be rel ated to job performance, the practice is prohibited." Id. T hus, the Court speaks of both "necessity" and "job-relatedne ss" in

the same breath.

In the following paragraph, we read that neither employment requirement is "shown to bear a demonstr able relationship to successful performance of the jobs for which it was used. Both were adopted . . . without meanin gful study of their relationship to job-performance abil ity." Id. The Court also refers to "testing mechanisms[that a re] unrelated to measuring job capability," "job-relate d tests," and states that "any given requirement must have a manifest relationship to the employment in question ." Id. at 432-34, 436. Not once does the opinion repeat or ex poundupon "business necessity." Unquestionably,"jobrelatedness" is Griggs' dominant thread.

The Court also cited with approval former EEOC Guideline 29 C.F.R. S 1607.4(c), which required emp loyers

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3. See Peter Brandon Bayer, Mutable Characteristics and the Definition of Discrimination Under Title VII, 20 U.C. Davis L. Re v. 769, 822 & n.213 (1987) ("Both the Supreme Court and lower court rul ings offer a confusing patchwork of seemingly conflicting standa rds.").

32to produce data "demonstrating that the test is pre dictive of

or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Id . at 433 n.9.

The Court next visited the concept of business justification in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), where a paper mill was using screening test s that had a disparate impact on black applicants. The iss ue, according to the Court, was whether the employer ha d shown the tests to be "job related." Id . at 408. T he Court concluded that the employer's validation study was defective because it "involved no analysis of the a ttributes of, or the particular skills needed in, the studied job groups." Id. at 432. The Court was also critical of hiring decisions based on the subjective opinions of super visors.

See id. at 432-33.

The portion of Albemarle most relevant to the case at

hand focused on whether tests that take into accoun t capability for promotion may be utilized if such lo ng-range requirements fulfill a "genuine business need." Id. at 434. The employer's validation study focused on the scor es achieved by job groups near the top of the various lines of progression. The Court observed that those results did "not necessarily mean that the test, or some particular cutoff score on the test, is a permissible measure of the minimal qualifications of new workers entering lower level jobs." Id. at 434. Thus, the validation study was faulty becau se there had been "no clear showing that differential valida tion was not feasible for lower level jobs." Id. at 435.

The Court next considered appropriate criteria in Washington v. Davis, 426 U.S. 229 (1976), which inv olved written tests that allegedly had a discriminatory i mpact on black applicants for police officer positions. Alth ough the suit was not brought under Title VII, the Court dis cussed Griggs and Albemarle. The district judge had conclu ded "that a positive relationship between the test and trainingcourse performance was sufficient to validate the[t est], wholly aside from its possible relationship to actu al performance as a police officer." Id. at 250. Signi ficantly, the Supreme Court remarked that such a conclusion w as not foreclosed by either Griggs or Albemarle and "i t seems

33to us the much more sensible construction of the jo brelatedness requirement." Id. at 250-51. Dismissing challenges to the test, the Court remarked that"som e minimum verbal and communicative skill would be ver y useful, if not essential, to satisfactory progress in the training regimen." Id. at 250.

In another case, Dothard v. Rawlinson, 433 U.S. 321 (1977), the Court held that height and weight requi rements for prison guards could not stand. The ruling was b ased on the employer's failure to produce any evidence to c orrelate those standards with "the requisite amount of stren gth thought essential to good job performance." Id. at 331. In a footnote, Dothard repeated Griggs' statement that " [t]he touchstone is business necessity," and further stat ed that "a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge." Id. at 332 n.14. Ea rlier in the body of the opinion, the Court explained that the e mployer must show that a requirement has " `a manifest relationship to the employment in question.' " Id. at 329 (quoting Griggs, 401 U.S. at 432).

In yet another context, the Court upheld an employe r's prohibition of employment to users of methadone, de spite claims of disparate impact on blacks and Hispanics. See New York City Transit Authority v. Beazer, 440 U.S. 568, 587 (1979). To the Court, the employer's narcotics rule, even in its application to methadone users, was"job

related." Id.

Beazer quoted the District Court's observation that "those goals [i.e., safety and efficiency] are sign ificantly served by--even if they do not require--[the employ er's] rule as it applies to all methadone users including thos e who are seeking employment in non-safety-sensitive posi tions." Id. at 587 n.31. The Supreme Court concluded that " [t]he record thus demonstrates that [the employer's] rule bears a `manifest relationship to the employment in questio n.' " Id. (quoting Griggs, 401 U.S. at 432).

The Beazer Court observed that most of the affected job positions were "attended by unusual hazards and mus t be performed by `persons of maximum alertness and

34competence.' " Id. at 571. Other positions were "cr itical" or

"safety sensitive," and many involved "danger to [t he employees] or to the public." Id.

III.

As the preceding sketch of pre-Wards Cove opinions demonstrates, the Supreme Court's articulations of the appropriate standards are far from clear. Phrases s uch as "business necessity," "demonstrable relationship to successful performance of the job," "manifest relat ionship to the employment in question," "genuine business n eeds," and "essential to good job performance," have been used interchangeably. These varying formulations bring t o mind Justice Holmes' observation, "A word is not a cryst al, transparent and unchanged, it is the skin of a livi ng thought and may vary greatly in color and content according to the circumstances and the time in whic h it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918).

My study of the standard for business justification as set forth by the Civil Rights Act of 1991 convinces me that it remains essentially the same as it was in the pre-W ards Cove era. However, other than its holding on burden of proof, it does not seem that Wards Cove was a revolutionary pronouncement. Until the Supreme Cour t reexamines the subject, however, courts will contin ue to struggle with the often inconsistent phraseology em ployed in Griggs and its progeny. The definition and appli cation of the appropriate standard for business justification will depend on the context in which it is raised. There are significant factual differences in the cases that e xplain, to some extent, the differing formulations. Albemarle and Griggs applied greater scrutiny when the disparate impact affected entry to lower-level jobs, where it is fai r to assume that no special qualifications would be generally e xpected.

In contrast, Beazer and Washington raised an additi onal important consideration -- public safety. Beazer co ncerned jobs involving serious dangers to employees as well as to transit passengers. In Washington, a written test demonstrating an applicant's ability to complete po lice officer training was job-related, even apart from i ts

35relationship to actual performance as a police offi cer. The

impact of public safety concerns on employee qualif ications is inescapable, and serves to differentiate those p ositions from lower-level, nonsafety-sensitive ones.4

The Courts of Appeals have explicitly recognized th e relevance of safety considerations in a series of d ecisions beginning with Spurlock v. United Airlines, Inc., 4 75 F.2d 216 (10th Cir. 1972). In that case, an airline requ ired that applicants for flight officer positions have a coll ege degree and a minimum of 500 flight hours. The Court, citin g Griggs, held that where "the job clearly requires a high degree of skill and the economic and human risks in volved in hiring an unqualified applicant are great, the e mployer bears a correspondingly lighter burden to show his employment criteria are job related." Id. at 219. B ecause, in the case of pilots, "[t]he risks involved in hiring an unqualified applicant are staggering . . . . [t]he courts . . . should proceed with great caution before requiring an employer to lower his pre-employment standards for such a job." Id.

Another leading case, Davis v. City of Dallas , 777 F.2d 205 (5th Cir. 1985), applied the Spurlock doctrine to criteria for hiring police officers. The City required a spe cific amount of college education, no history of recent m arijuana usage, and a negative history of traffic violations . Despite findings of disparate impact, the Court upheld the requirements. Having reviewed the many cases follow ing Spurlock, the Court had "no difficulty . . . equati ng the position of police officer in a major metropolitan area such as Dallas with other jobs that courts have found to involve the important public interest in safety." Id. at 21 5 (internal quotation marks omitted). The degree of public risk and responsibility alone "would warrant examination of the job relatedness of the . . . education requirement unde r the lighter standard imposed under Spurlock and its pro geny."

Id. at 215.

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4. See Andrew C. Spiropoulos, Defining the Business Necessity Defense to the Disparate Impact Cause of Action: Finding the G olden Mean, 74 N.C. L. Rev. 1479 (1996).

36Observing the nature of the positions at issue in G riggs

and Albemarle, Davis noted that in neither case did the Supreme Court suggest that those jobs "were notewor thy for their dangerousness or importance to the public welfare." Id. at 210. In contrast, the employment u nder consideration in Davis directly implicated public s afety concerns. See id. at 211. It is interesting that Ju stice Blackmun, in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (plurality op.), objecting to what he co nsidered to be a tendency to weaken the employer's burden, c ited Davis favorably, stating that "[t]he proper means o f establishing business necessity will vary with the type and size of the business in question, as well as the pa rticular job" in question. Id. at 1007. (Blackmun, J., concu rring in part and concurring in the judgment).5

In a post-Wards Cove case involving firefighters, t he Court of Appeals for the Eleventh Circuit noted tha t such "safety claims would afford the City an affirmative defense, for protecting employees from workplace hazards is a goal that, as a matter of law, has been found to qualify as an important business goal for Title VII purposes." Fi tzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir. 19 93) (citing Beazer, 440 U.S. at 587 & n. 31; Dothard, 433 U.S. at 331 n. 14). Thus, "[m]easures demonstrably necessary to meeting the goal of ensuring worker safety are ther efore deemed to be `required by business necessity' under Title

VII." Id.

In a similar case, the Court of Appeals for the Eig hth Circuit wrote that "the law does not require the ci ty to put the lives of [plaintiff] and his fellow firefighter s at risk by taking the chance that he is fit for duty when soli d scientific studies indicate that persons with test results similar to his are not." Smith v. City of Des Moine s, 99 F.3d 1466, 1473 (8th Cir. 1996). Other Courts of Appeals have

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5. In the analogous context of the defense of bona fide occupational qualification, the Supreme Court has stated: " `The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringen t may be the job qualifications . . . .' " Western Air Lines, Inc. v . Criswell, 472 U.S. 400, 413 (1985) (quoting with approval Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976)).

37reached similar conclusions in cases involving safe tysensitive positions such as truck drivers, bus driv ers, firefighters, and police officers.6

IV.

The issues that separate the parties are straightfo rward. Plaintiffs do not seriously contest the fact that a erobic capacity is a valid predictor of efficient job perf ormance as a transit police officer. They do not challenge the finding that running for 1.5 miles is an effective way to m easure aerobic capacity. Nor apparently do they suggest th at 42.5 mL is an inappropriate cut-off for male applicants: they implicitly accept this standard by advancing Dr. Mc Ardle's alternative test, which would use that score for ma les and

a lower one for females.

Even the government plaintiff concedes that an empl oyer may improve its workforce. U.S. Br. at 35 (citing G riggs, 401 U.S. at 431).7 Griggs, in turn, stressed that tests "must

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6. See, e.g., York v. American Telephone & Telegrap h Co., 95 F.3d 948, 952, 959 (10th Cir. 1996) (powerhouse operating eng ineers); Zamlen v. City of Cleveland, 906 F.2d 209, 217 (6th Cir. 1990 ) (firefighters); Hamer v. City of Atlanta, 872 F.2d 1521, 1535 (11th Cir. 1989) (firefighters); Levin v. Delta Air Lines, Inc., 730 F.2d 994, 997-9 8 (5th Cir. 1984) (flight attendants); Chrisner v. Complete Auto Transit, Inc ., 645 F.2d 1251, 1261-63 (6th Cir. 1981) (truck yard employees); Har riss v. Pan American World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 19 80) (flight attendants); McCosh v. City of Grand Forks, 628 F.2 d 1058, 1063 (8th Cir. 1980) (police); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977) (airline pilots); see also Alito, supra, at 1033-35 & n.100.

7. It is interesting that in the legislative histor y of the original text

of Title VII, congressional advocates argued that "title VII would not require, and no court could read title VII as requiring, an empl oyer to lower or change the occupational qualifications he sets for his emp loyees . . . ." 110 Cong. Rec. 7246-47 (April 8, 1964) (interpretive me morandum of Sen. Case). Senators Clark and Case stated that the "emp loyer may set his qualifications as high as he likes . . . ." Id. at 7213 (April 8, 1964) (interpretive memorandum of Sens. Clark and Case). Senator Humphrey stated that "[t]he employer, not the Government, wi ll establish the standards." Id. at 13088 (June 9, 1964). Thus, the legislative history of Title VII "clearly reveals that Congress was concer ned about preserving employer freedom, and that it acted to mandate empl oyer color-blindness with as little intrusion into the free enterprise s ystem as possible." Contreras v. City of Los Angeles, 656 F.2d 1267, 12 78 (9th Cir. 1981).

38measure the person for the job and not the person i n the

abstract." Griggs, 401 U.S. at 436. SEPTA's running test attempts to do just that, i.e., improve the caliber of its police force by selecting new hires to fit appropri ately heightened performance standards.

A fair appraisal of the plaintiffs' objection is th at the running test's cut-off requires female applicants t o run faster than a majority of women can run without tra ining. However, nearly all of the women who did train were able to pass the test. Also, not all males were able to pass, although their failure percentages were substantial ly lower.

Plaintiffs complain that SEPTA cannot point to any instances where a perpetrator of a crime got away, or an offense was committed because of an officer's lack of aerobic capacity. But as noted by Fitzpatrick, "[t] he mere

absence of unfortunate incidents is not sufficient" to preclude a particular safety requirement because ot herwise, such "measures could be instituted only once accide nts

had occurred rather than in order to avert accident s." Fitzpatrick, 2 F.3d at 1120-21.

Here, where applicants have it within their power t o prepare for the running test, they may properly be expected to do so. In view of the important public safety co ncerns at issue, it is not unreasonable to expect all applica nts -- female or male -- to take the necessary steps in or der to qualify for the positions.

The District Court's conclusions must be appraised against this background. The trial was lengthy and the evidence extensive. The findings of fact on job nee ds with respect to aerobic capacity are not clearly erroneo us. This conclusion is mandated by the standard that clear e rror exists only when, on the entire evidence, a court i s left with the definite, firm conviction that a mistake has be en committed. See Anderson v. City of Bessemer City, 4 70 U.S. 564, 573 (1985). If the account of the District Cou rt is "plausible in light of the record viewed in its ent irety," we may not reverse even if we are convinced that had w e "been sitting as the trier of fact, [we] would have weigh ed the evidence differently." Id. at 574.

39Moreover, "[w]here there are two permissible views of the

evidence, the factfinder's choice between them cann ot be clearly erroneous." Id. "This is so even when the d istrict court's findings . . . are based instead on physica l or documentary evidence or inferences from other facts ." Id. Where findings are based on credibility determinati ons, appellate review accords even greater deference to the findings of the District Court. See id. at 575. Cou rts routinely hold that business justification is revie wed for clear error. See, e.g., Davis, 777 F.2d at 208 & n. 1; Spurlock, 475 F.2d at 219-20. I accept, therefore, that 42.5 mL is an appropriate level for the position of a SE PTA officer, that it is reasonable, and that it is atta inable by otherwise physically fit female applicants with mod erate training.

The question then, is whether SEPTA's standard is permissible under the terms of the Civil Rights Act of 1991 and the relevant precedents. The District Court rej ected the plaintiffs' contention that "business necessity" un der the statute is governed by a footnote in Dothard that s tates: "[A] discriminatory employment practice must be shown to be necessary to safe and efficient job performance . . . ." Dothard, 433 U.S. at 332 n.14. Rather, looking to G riggs and Beazer, the District Court stated that SEPTA ne ed only show that its tests "significantly serve, but are n either required by nor necessary to, the employer's legiti mate business interests" -- in other words, that it "bea rs a manifest relationship" to the employment in questio n.

In disagreeing with the criteria used by the Distri ct Court, the majority holds that "a discriminatory cu toff score is impermissible unless shown to measure the minimu m qualifications necessary for successful performance of the job in question." The difficulties presented by thi s standard are illustrated by the testimony of Dr. McArdle, th e plaintiffs' expert. In essence, he proposed that fe male applicants be expected to meet 50% of their aerobic capacity, translating to 36 mL, but that males cont inue at the 50% level of 42.5 mL. That standard would, of c ourse, have less adverse impact on women, but according to the findings of the District Court, would also have a detrimental impact on the effectiveness of the SEPT A transit police.

40With this in mind, I cannot agree that the majority 's

standard is the correct one for this case. Reducing

standards towards the lowest common denominator is particularly inappropriate for a police force. Undo ubtedly, candidates who fail the running test -- female or m ale -- may have other qualities of particular value to SEP TA, but they must possess the requisite aerobic capacity as well. No matter how laudable it is to reduce job discriminat ion, to achieve this goal by lowering important public safe ty standards presents an unacceptable risk.

Aerobic capacity is an objective, measurable factor which gauges the ability of a human being to perform phys ical activity. The aerobic demands on the human system a re affected by absolutes such as the distance traveled , the speed, the number of steps to be climbed, and simil ar factors. Governmental agency pronouncements will no t shorten distances, reduce the number of steps, or d ecrease the aerobic capacity of perpetrators to match the r educed standards of officers, male or female.8 Some males and more females cannot meet the necessary requirements

. Based on the facts established at trial, those indi viduals simply cannot perform the job efficiently. To the e xtent that they cannot, their hire adversely affects public sa fety.

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8. Although the government is a plaintiff in this d ispute, I would note that some agencies take a somewhat different tack o n the issue of aerobic fitness. The U.S. Forest Service, for insta nce, requires firefighters to have an aerobic capacity of 45 to 48 mL, and rec ommends one of up to 50. See United States Department of Agriculture, Forest Service, Technology & Development Program, Fitness and Work Capacity 51 (2d ed. 1997). Notably, that agency currently uses a 1. 5 mile run test. See

id. at 50-51.

Also, the Presidential Physical Fitness Award is av ailable to children who meet the 85th percentile of fitness by meeting target levels in events such as a one-mile run. See Qualifying Standards (u pdated Oct. 15, 1998). http://www.indiana.edu/#A1#preschal/qualifyi ng.html>.

The Centers For Disease Control and Prevention lame nt that more than 60% of U.S. adults do not engage in the recomm ended amount of activity, and 25% are not active at all. See Physic al Activity and Health, Adults (viewed May 7, 1999) http://www.cdc.gov/nccd php/sgr/

adults.htm>.

41The current Uniform Guidelines on Employee Selectio n

Procedures, 29 C.F.R. S 1607 ("EEOC Guidelines"), a re not as strict as the standard suggested by the majority . In discussing cut-off scores, the Guidelines explicitl y state that "they should normally be set so as to be reaso nable and consistent with normal expectations of acceptab le proficiency within the work force." 29 C.F.R.S 1607 .5(H) (1998). Further, the EEOC Guidelines standard -- "predictive of or significantly correlated with imp ortant elements" -- has been cited by the Supreme Court wi th approval on several occasions. See Albemarle, 422 U .S. at 431 (quoting former 29 C.F.R. S 1607.4(c)); Griggs, 401 U.S. at 433 n.9 (quoting same); see also 29 C.F.R. S 160 7.5(B) (1998).

Further, Albemarle's reference to "minimal qualific ations" was directed only to the inappropriateness of using a test geared towards higher-level jobs as a screen for en try-level positions. See Albemarle, 422 U.S. at 434. This hol ding, which is minimally relevant to the matter at hand, is doubly inapplicable when the job affects public saf ety. See Davis, 777 F.2d at 211 n.5.9

I see no need to remand this case to the District C ourt. Whatever standard is used, the findings of fact req uire an affirmance. Although the District Court rejected th e plaintiffs' argument that the Dothard footnote, rat her than Beazer, supplied the proper standard, the factual f indings make it clear that under either formulation, the Di strict

Court reached the correct result.

The Dothard footnote states that the challenged pra ctice must be "necessary to safe and efficient job perfor mance." Dothard, 433 U.S. at 331 n.14. The District Court, also in a footnote, wrote "physical fitness is only one tra it or ability required of SEPTA officers, [but] it is a trait or ability that is necessary for and critical to the successful per formance of the job, and thus SEPTA should be able to test f or such

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9. The plaintiffs also suggest that SEPTA's validat ion studies were insufficient. However, strict compliance with the E EOC Guidelines is not necessary in all cases. See Beazer, 440 U.S. at 587 n.31; Washington, 426 U.S. at 250-51. In cases involving public safet y, courts have held that empirical validation is not required. See Boyd , 568 F.2d at 54.

42a trait." This finding more than complies with Doth ard's

footnote by concluding that not only is physical fi tness "necessary" to safe and efficient job performance a s SEPTA officers, but that it is "critical" to successful p erformance of these jobs. Moreover, the finding clearly meets eve n the

criterion that cut-off scores "measure the minimum qualifications necessary for successful performance of the job." (emphasis added).

Nor can there be any doubt that the factual finding s here satisfy Griggs' requirement of "business necessity. " Unquestionably, SEPTA's test is job-related and the re can be no doubt that physical fitness, and particularly aerobic capacity, is necessary for adequate performance of the job of a SEPTA transit officer. The findings are convin cing that 42.5 mL is a reasonable cut-off point for determini ng the physical ability necessary for successful performan ce of the job. Consequently, even under the plaintiffs' readi ng of the 1991 Act, which relies so much on Dothard, the judg ment

in favor of the defendant should be affirmed.

To my mind, the correct standard for this case is t hat of Spurlock-Davis, one that places greater emphasis on the safety of the public and fellow officers. I have no doubt that this line of cases survives the Civil Rights Act of 1991, because those opinions -- as noted in Congress' "interpretive memorandum" -- "reflect the concepts enunciated" in Supreme Court decisions prior to War ds Cove. See Watson, 487 U.S. at 998; Beazer, 440 U.S. at 587 n.31; Washington, 426 U.S. at 250; Smith, 99 F. 3d at 1473; Fitzpatrick, 2 F.3d at 1119. Safety concerns are clearly "concepts" considered by the Supreme Court and applied in various factual circumstances by the Cou rts of Appeals, both in pre- and post-Wards Cove cases. No thing in the legislative history casts any doubt on the c ontinued viability of these opinions.

Although it did not cite Spurlock-Davis, the Distri ct Court stated in its conclusions of law that "employers su ch as SEPTA should be encouraged to improve the efficienc y of its workforce, especially where public safety is implic ated by the particular job as it is with SEPTA." More empha tically, it stated that "[t]he Court simply will not condone dilution of readily obtainable physical abilities standards that serve

43to protect the public safety in order to allow unfi t

candidates, whether they are male or female, to bec ome SEPTA transit police officers."

Although the District Court only inferentially appl ied Spurlock-Davis, I would do so explicitly and affirm the judgment on that basis.10 Here, the record supplies ample evidence about safety concerns related to the perfo rmance of SEPTA officers. In cases such as these, courts s hould

decline to lower standards in an effort to reduce d isparate impact when that goal comes at the expense of publi c safety. Due deference should be afforded to the exp erience of specialized employers in setting appropriate req uirements for safety-sensitive positions.

V.

The Lanning appellants propose a number of alternat ive practices that they suggest would have a lesser dis parate impact while still serving SEPTA's goals. First, th ey suggest that SEPTA select medically fit applicants who pass fitness requirements at the end of their training at the Ph iladelphia Police Academy. Second, as noted earlier, they argu e in favor of a relative fitness test (i.e., one with a lower cut-off point for females). Third, they prompt SEPTA to pro pose an alternative.

For plaintiffs to establish a satisfactory alternat ive, they must "make[ ] the demonstration described in [42 U. S.C. S 2000e-2(k)(1)(C)] with respect to an alternative employment practice and [establish that] the[employ er] refuses to adopt such alternative employment practi ce." 42 U.S.C. S 2000e-2(k)(1)(A)(ii). To meet this burden, the plaintiffs' proposed alternatives must have less di sparate impact and "also serve the employer's legitimate in terest in `efficient and trustworthy workmanship.' " Albemarl e, 422 U.S. at 425; see also NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1336 n.17 (3d Cir. 1981) (en banc). As stated in

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10. An order of the District Court may be affirmed on alternative grounds where the judgment is supported by the record below . See Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1144-45 & n.1 (3d Cir. 1983) (citing Helvering v. Gowran, 302 U.S. 238, 245 (193 7)).

44Watson, the alternative test must "be equally as ef fective as

the challenged practice in serving the employer's l egitimate business goals." Watson, 487 U.S. at 998.

The District Court found that none of the plaintiff s' proposals served SEPTA's legitimate interest in hav ing a more physically fit work force. If SEPTA may requir e an aerobic capacity of 42.5 mL after training at the p olice academy, as plaintiffs propose, it is unclear how t hat practice would be any less discriminatory than requ iring it before hire. In short, that plan would simply requi re that training be on "company time" rather than on that o f the applicants.

As to the relative fitness test proposed by the pla intiffs' expert, the factual findings demonstrate that offic ers with a capacity of 36 mL do not serve SEPTA's needs as wel l as the required standard of 42.5 mL.11 Finally, the pr oposal

that SEPTA come forward with an alternative is not an alternative at all. Thus, plaintiffs have failed to meet their burden to establish an alternative employment pract ice.

I would affirm the judgment of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

___________________________________________________ ______________

11. The Civil Rights Act of 1991 presents another p otential barrier to the relative fitness test. Subsection 2000e-2(l) prohib its "in connection with the selection or referral of applicants or candidat es for employment . . . to . . . use different cutoff scores for . . . empl oyment related tests on

the basis of . . . sex[.]" By its plain language, 42 U. S.C. S 2000e-2(l) arguably prohibits a relative fitness test. The District Cou rt concluded that this provision did not apply. I have some doubt on that ruling, but need not

reach that issue because I would affirm on other ba ses.

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