1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-29-1999

Lanning v. SEPTA

Precedential or Non-Precedential:

Docket 98-1644,98-1755

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Recommended Citation

"Lanning v. SEPTA" (1999). 1999 Decisions. Paper 177.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/177
Filed 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 Kelly 

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 Court 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 

 2 
OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

In this appeal, we must determine the appropriate legal 

standard to apply when evaluating an employer's business 

justification in an action challenging an employer's cutoff 

score on an employment screening exam as discriminatory 

under a disparate impact theory of liability. We hold today 

that under the Civil Rights Act of 1991, a discriminatory 

cutoff score on an entry level employment examination 

must be shown to measure the minimum qualifications

necessary for successful performance of the job in question 

in order to survive a disparate impact challenge. Because 

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 reverse the 

District Court's judgment and remand for reconsideration 

under this standard. In light of our decision to remand on 

this basis, we need not reach the parties' other assertions 

of error. 

I. 

This appeal comes to us from a judgment entered by the 

District Court in favor of the Southeastern Pennsylvania 

Transportation Authority ("SEPTA") after a twelve day bench 

trial in January of 1998. Although the parties generally do 

not dispute the facts relevant to this appeal, to the 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 the 

following background is adopted from the facts as found by 

the District Court in its extensive memorandum opinion. 

See Lanning v. Southeastern Pennsylvania Transp. Auth., 

1998 WL 341605, at *1-*52 (E.D. Pa. June 25, 1998).

 3 
A. 

SEPTA is a regional mass transit authority that operates 

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 primarily to 

patrolling the subways and limited their responsibilities to 

serve as guards at other SEPTA property. In addition, 

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 might 

upgrade the physical fitness level of its police officers. 

In 1991, SEPTA hired Dr. Paul Davis to develop an 

appropriate physical fitness test for its police officers.2 Dr. 

Davis initially met with SEPTA officials in order to ascertain 

SEPTA's objectives. Dr. Davis determined that SEPTA was 

interested in enhancing the level of fitness, physical vigor 

and general productivity of its police force. Once Dr. Davis 

had determined SEPTA's objectives, he went on a ride-along 

with SEPTA transit police and, over the course of two days 

and approximately twenty hours, rode the SEPTA trains in 

order to obtain a perspective on the expectations of SEPTA 

transit officers. 

Dr. Davis next conducted a study with twenty 

experienced SEPTA officers, designated "subject matter 

experts" (SMEs), in an effort to determine what physical 

abilities are required to perform the job of SEPTA transit 

officer. From the responses Dr. Davis received in this study, 

he determined that running, jogging, and walking were 

_________________________________________________________________ 

1. Under the zone concept, SEPTA designated eight separate zones 

covering the subway system. In a typical zone, one Lieutenant is 

assigned to command the zone. Two Sergeants are also assigned to the 

zone. Three shifts of officers per day tour the zone. Beats within the 

zones are assigned to the individual officers. Beats are reassigned 

periodically to familiarize the officers with the entire 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. 

 4 
important SEPTA transit officer tasks and that SEPTA 

officers were expected to jog almost on a daily basis. 

Dr. Davis then asked the SMEs to determine what level 

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 completion 

of this run would require that an officer possess an aerobic 

capacity of 42.5 mL/kg/min, the aerobic capacity that 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 run 

as an applicant screening test. Dr. Davis understood that 

SEPTA officers would not be required to run 1.5 miles 

within 12 minutes in the course of their duties, but he 

nevertheless recommended this test as an accurate 

measure of the aerobic capacity necessary to perform 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 mile run 

was administered as the first component of the physical 

fitness test; if an applicant failed to run 1.5 miles 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 

_________________________________________________________________ 

3. Dr. Davis initially decided that an aerobic capacity of 50 mL/kg/min 

was necessary to perform the job of SEPTA transit police officer. After 

determining that institution of such a high standard 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 in 1992. Credited 

testimony was offered, however, that each of the six or seven women who 

took the 1.5 mile test in 1992 failed. Relying on this testimony, the 

District Court found that the disparate impact on women was slightly 

more pronounced than the 1991, 1993, and 1996 figures reflect. See 

Lanning, 1998 WL 341605 at *28. 

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

men. In addition, research studies confirm that a cutoff of 

12 minutes on a 1.5 mile run will have a disparately 

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 physical 

fitness screening test, SEPTA also began testing incumbent 

officers for aerobic capacity in 1991. SEPTA policy requires 

any officer who fails any portion of the incumbentfitness 

test to retest on the failed element within three months. For 

each portion of the physical fitness test that an incumbent 

officer fails, an interim goal is set for that officer. 

SEPTA initially disciplined those incumbent officers who 

failed the fitness test. Due to protests by the incumbent 

officers' union, however, SEPTA discontinued its discipline 

policy and instead implemented an incentive program that 

rewarded incumbent officers for passing their interim 

fitness goals. 

According to SEPTA's internal documents, significant 

percentages of incumbent officers of all ranks have failed 

SEPTA's physical fitness test.6 By 1996, however, 86% of 

incumbent officers reached SEPTA's physical fitness

standards. SEPTA has never taken any steps to determine 

whether incumbent officers who have failed the physical 

_________________________________________________________________ 

5. For example, one proffered study showed that approximately 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 category can achieve 

this time. As noted by the District Court, testimony was offered that this 

study may not be entirely reliable because the women who participated 

in the study were predominately white women of higher socioeconomic 

status. Other research studies, however, were offered 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 30-40: 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. 

 6 
fitness test have adversely affected SEPTA's ability to carry 

out its mission. 

SEPTA has promoted incumbent officers who have failed 

some or all of the components of the physical fitness test. 

SEPTA has also given special recognition, commendations, 

and satisfactory performance evaluations to incumbent 

officers who have failed the physical fitness test. SEPTA has 

never disciplined, terminated, removed, reassigned,

suspended or demoted any transit officer for failing 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 officer 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 its 

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 ranks 

higher than that of patrol officer. See Lanning, 1998 WL 

341605 at *27. 

B. 

On January 28, 1997, after satisfying all administrative 

prerequisites, five women who failed SEPTA's 1.5 mile run 

brought a Title VII class action against SEPTA on behalf of 

all 1993 female applicants, 1996 female applicants and 

future female applicants for employment as SEPTA police 

officers who have been or will be denied employment by 

reason of their inability to meet the physical entrance 

requirement of running 1.5 miles in 12 minutes or less. On 

February 18, 1997, the Department of Justice, after

conducting the appropriate investigation of SEPTA's

employment practices and meeting all conditions precedent 

under Title VII, also filed suit on behalf of the United States 

challenging SEPTA's entire physical fitness test, including 

the 1.5 mile run. The District Court properly exercised 

 7 
jurisdiction over these Title VII actions challenging SEPTA's 

hiring practices pursuant to 28 U.S.C. S 1331. On April 21, 

1997, the District Court consolidated the two actions for all 

purposes up to and including trial. 

After litigation commenced, SEPTA hired expert 

statisticians to submit reports examining the statistical 

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 statistically 

significant correlation between high aerobic capacity and 

arrests, arrest rates and commendations. In addition, one 

expert prepared a report that estimated that 51.9% of the 

persons arrested for serious crimes between 1991 and 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 that 

SEPTA established that its aerobic capacity requirement is 

job related and consistent with business necessity. See 

Lanning, 1998 WL 341605 at *35. 

The District Court also found support for this conclusion 

in an expert report submitted on behalf of SEPTA by Dr. 

Robert Moffatt. Dr. Moffatt simulated a training course and 

concluded that officers with aerobic capacities of 45 

mL/kg/min or better had a 7-8% decrement in their ability 

to perform physical activities after a run of approximately 

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 found that Dr. 

Moffatt's study demonstrates "the manifest relationship of 

aerobic capacity to the critical and important duties of a 

SEPTA transit police officer . . . ." Id. at *68. 

_________________________________________________________________ 

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 homicide, rape, robbery, 

aggravated assault, burglary, theft, and auto theft. This category of 

arrests accounts for approximately ten percent of all reported incidents 

and seven percent of all reported arrests. See App. at 3040. (Siskin 

Expert Report). 

 8 
The District Court entered judgment in favor of SEPTA on 

all claims. Both the individual plaintiffs and the United 

States have taken appeals from the District Court'sfinal 

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 standards in 

evaluating SEPTA's business necessity defense and that the 

District Court made erroneous findings of fact in 

determining that SEPTA's 1.5 mile run does not violate Title 

VII. Although the United States initially challenged SEPTA's 

implementation of its entire physical fitness test, on appeal 

the United States joins the individual plaintiffs in asserting 

error solely with respect to the District Court's 

determination that SEPTA's 1.5 mile run is not violative of 

Title VII. Because the issue of whether the District Court 

applied the correct legal standard is one of law, our review 

is plenary. 

II. 

Under Title VII's disparate impact theory of liability, 

plaintiffs establish a prima facie case of disparate impact by 

demonstrating that application of a facially neutral 

standard has resulted in a significantly discriminatory 

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 show that 

the employment practice is "job related for the position in 

question and consistent with business necessity . . . ." 42 

U.S.C. S 2000e-2k. Should the employer meet this burden, 

the plaintiffs may still prevail if they can show that an 

alternative employment practice has a less disparate impact 

and would also serve the employer's legitimate business 

interest. 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 disparate 

impact analysis is not at issue in this appeal.9 Rather, this 

_________________________________________________________________ 

9. On appeal, SEPTA offered evidence to establish that the individual 

female applicants who failed SEPTA's 1.5 mile run demonstrated a 

cavalier attitude in preparing for and taking the test. As aptly noted by 

plaintiffs' counsel at oral argument, this evidence has no bearing upon 

our analysis in this appeal because SEPTA has conceded that its test 

has a severe disparate impact on women. 

 9 
appeal focuses our attention on the proper standard for 

evaluating whether SEPTA's 1.5 mile run is "job related for 

the position in question and consistent with business 

necessity" under the Civil Rights Act of 1991. Because the 

Act instructs that this standard incorporates only selected 

segments of prior Supreme Court jurisprudence on the 

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 Griggs v. 

Duke Power Co., 401 U.S. 424 (1971). In embracing 

disparate impact, the Court recognized that Title VII was 

meant not only to proscribe overt discrimination, but also 

to prohibit "practices that are fair in form, but 

discriminatory in operation." Griggs, 401 U.S. at 431. The 

Court made clear that what is required by Title VII is "the 

removal of artificial, arbitrary, and unnecessary barriers to 

employment when the barriers operate invidiously to

discriminate on the basis of racial or other impermissible 

classification." Id. Accordingly, the Court announced that in 

evaluating practices fair in form but discriminatory in 

operation, "[t]he touchstone is business necessity." Id. 

The Court, however, was unclear in articulating what an 

employer must show to demonstrate business necessity. 

The Court couched the employer's burden in terms of

showing that its practice is "related to job performance"; 

"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 performance." 

Id. at 431, 432, 436. In applying this standard, however, 

the Court rejected the employer's justification in Griggs that 

its standardized intelligence tests and diploma 

requirements generally would improve the overall quality of 

the work force in its power plant. The Court held that, 

although these requirements may be useful, they could not 

be used to exclude disproportionately a protected group 

when the employer failed to show that they do not test an 

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

33. 

The Court next spoke to the issue of business necessity 

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 determining 

whether to promote employees to more skilled positions in 

its paper mill. Albemarle, 422 U.S. at 408-11. In 

preparation for trial, the employer hired an industrial 

psychologist to complete validation studies showing that 

the tests were job related because they had a statistically 

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 that its 

requirements were job related. 

The Court held that "discriminatory tests are 

impermissible unless shown, by professionally acceptable 

methods, to be `predicative 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 431 (quoting 29 CFR S 1607.4(c)). 

In so holding, the Court noted that the Equal Employment 

Opportunity Commission (EEOC) Guidelines for 

professional standards of test validation are entitled 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 validation 

studies as inadequate in several respects under the EEOC 

Guidelines. For example, the Court rejected the studies 

because they focused on the most qualified employees near 

the top of the line of progression, stating: 

 The fact that the best of those employees working 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 measure of the 

 minimal qualifications of new workers entering lower 

 level jobs. 

Id. at 434. The Court accordingly held that consideration 

must be given to the possible use of testing as a promotion 

device rather than as a screen for entry into lower level 

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

validation studies, the Court held that the employer had 

failed to show that its requirements were job related to the 

position in question. Id. at 435-36. 

The next Title VII case to raise the business necessity 

issue for the Court's consideration was Dothard v. 

Rawlinson, 433 U.S. 321 (1977).10 In Dothard, female 

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 necessity, 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 challenge." 

Dothard, 433 U.S. at 332 n.14. The Court rejected the 

prison's assertion that height and weight requirements have 

a relationship to the unspecified amount of strength 

essential to effective job performance, holding that if 

strength is a bona fide job related quality, the prison could 

test for it directly by adopting and validating a fairly 

administered strength test. Id. at 331-32. 

The Court's next definitive statement on the business 

necessity doctrine is found in Wards Cove Packing Co., 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 business 

necessity.11 According to the Court: 

_________________________________________________________________ 

10. Prior to Dothard, the Court included some language 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 applicable 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 plaintiffs failed to 

establish a prima facie case of disparate impact. The Court, however, 

commented on the business necessity doctrine in dicta. In a footnote, 

the Court stated that even if a prima facie case had been established, 

the employer would have shown business necessity by establishing that 

its practice significantly serves its legitimate business 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 challenged practice 

 serves, in a significant way, the legitimate employment 

 goals of the employer. The touchstone of this inquiry is 

 a reasoned review of the employer's justification for his 

 use of the challenged practice. A mere insubstantial 

 justification in this regard will not suffice, because 

 such a low standard of review would permit 

 discrimination to be practiced through the use of 

 spurious, seemingly neutral employment practices. At 

 the same time, though, there is no requirement that 

 the challenged practice be "essential" or 

 "indispensable" to the employer's business for 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 employer bears 

only the burden of production; the burden of persuasion 

remains on the disparate impact plaintiff at all times. Id. As 

we have previously recognized, the Wards Cove standard 

may reasonably be viewed as a departure from the more 

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 Civil 

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 Supreme 

_________________________________________________________________ 

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), suggested that 

employers could meet their burden of establishing business necessity 

simply by advancing a legitimate business reason for the practice in 

question. Watson, 487 U.S. at 998. While the language in these cases 

clearly foreshadowed the Court's holding in Wards Cove, this language 

had never been embraced by a majority of the Court as the binding 

standard for business necessity prior to Wards Cove. 

 13 
Court 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 both the 

burden of production and the burden of persuasion in 

establishing business necessity rest with the employer. See 

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

In addition, the Act codified the business necessity 

doctrine by using the following language: 

 An unlawful employment practice based on disparate 

 impact is established under this subchapter only if-- 

 (i) a complaining party demonstrates that a

 respondent uses a particular employment practice that 

 causes a disparate impact on the basis of race, color, 

 religion, sex, or national origin and the respondent fails 

 to demonstrate that the challenged practice is job 

 related for the position in question and consistent with 

 business necessity; or 

 (ii) the complaining party makes the demonstration 

 described in subparagraph (C) with respect to an 

 alternative employment practice and the respondent 

 refuses to adopt such alternative employment practice. 

42 U.S.C. S 2000e-2(k)(1)(A)(emphasis added). The Act 

further instructs that in interpreting its business necessity 

language, "[n]o statements other than the interpretive 

memorandum . . . shall be considered legislative history of, 

or relied upon in any way as legislative history . .. ." Civil 

Rights Act of 1991, Pub L. No. 102-166, S 105(b), 105 Stat. 

1071, 1075 (1992). The interpretive memorandum 

referenced in this portion of the Act states in relevant part: 

 The terms "business necessity" and "job related" are 

 intended to reflect the concepts enunciated by the 

 Supreme Court in Griggs v. Duke Power Co., 401 U.S. 

 424 (1971), and in the other Supreme Court decisions 

 prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 

 642 (1989). 

137 Cong. Rec. 28,680 (1991). After the passage of the Act, 

proponents of both a strict test for business necessity and 

 14 
a more liberal requirement claimed victory in the standard 

adopted by the Act.12 

III. 

The Supreme Court has yet to interpret the "job related 

for the position in question and consistent with business 

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 Rights Act 

of 1991 statutorily reversed Wards Cove but ruling in favor 

of employer because practice was demonstrably necessary 

to meet an "important business goal"); Bradley v. Pizzaco 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 history 

with the exception of one short interpretive memorandum 

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 business 

necessity standard enunciated in Griggs and not the Wards 

Cove interpretation of that standard. By Congress' 

distinguishing between Griggs and Wards Cove, we must 

conclude that Congress viewed Wards Cove as a significant 

departure from Griggs. Accordingly, because the Act clearly 

chooses Griggs over Wards Cove, the Court's interpretation 

_________________________________________________________________ 

12. See Andrew C. Spiropoulos, Defining the Business Necessity Defense 

to the Disparate Impact Cause of Action: Finding the Golden Mean, 74 

N.C. L. Rev. 1479, 1516-20 (1996)(outlining the respective positions of 

both sides to the debate); compare also Michael Carvin, Disparate Impact 

Claims Under the New Title VII, 68 Notre Dame L. Rev. 1153 

(1993)(arguing that Wards Cove is still good law after Civil Rights Act of 

1991); with Susan S. Grover, The Business Necessity Defense in 

Disparate Impact Discrimination Cases, 30 Ga. L. Rev. 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 survive the Act). 

 15 
of the business necessity standard in Wards Cove does 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 the 

Court in Griggs was the eradication of discrimination 

through the application of practices fair in form but 

discriminatory in practice by eliminating unnecessary 

barriers to employment opportunities. In the context of a 

hiring exam with a cutoff score shown to have a 

discriminatory effect, the standard that best effectuates this 

mission is implicit in the Court's application of the 

business necessity doctrine to the employer in Griggs, i.e., 

that a discriminatory cutoff score is impermissible unless 

shown to measure the minimum qualifications necessary 

for successful performance of the job in question. Only this 

standard can effectuate the mission begun by the Court in 

Griggs; only by requiring employers to demonstrate that 

their discriminatory cutoff score measures the minimum 

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 impact on 

minorities as a method of imposing unnecessary barriers to 

employment opportunities. 

The evolution of the Court's articulation of the business 

necessity doctrine in both Albemarle and Dothard reinforces 

_________________________________________________________________ 

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

which it is asserted that Wards Cove remains the controlling 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 Act'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 improper to apply a strict 

business necessity standard. This argument, however, ignores two 

important aspects of the Act which constrain our interpretation of the 

standard adopted. First, the interpretive memorandum's distinction 

between Griggs and Wards Cove casts significant doubt on the assertion 

that Congress read Wards Cove as simply a clarification of Griggs. 

Second, the Act precludes us from considering the legislative history 

upon which this argument relies for support. Accordingly, we find this 

argument to be devoid of merit. 

 16 
the conclusion that this standard is both implicit in Griggs 

and central to its mission. In Albemarle, the Court

explained that discriminatory tests must be validated to 

show that they are "predictive of . . . important elements of 

work behavior which comprise . . . the job . . . for 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. This is 

simply another way of saying that discriminatory cutoff 

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 practice," 

such as a discriminatory cutoff score on an entry level 

exam, "must be shown to be necessary to safe and efficient 

job performance to survive a Title VII challenge." 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 discriminatory 

cutoff score an employer must demonstrate that its cutoff 

measures the minimum qualifications necessary for 

successful performance of the job in question. Furthermore, 

because the Act instructs us to interpret its business 

necessity language in conformance with Griggs and its preWards Cove progeny, we must conclude that the Act's

business necessity language incorporates this standard. 

Our conclusion that the Act incorporates this standard is 

further supported by the business necessity language 

adopted by the Act. Congress chose the terms "job related 

for the position in question" and "consistent with business 

necessity." Judicial application of a standard focusing 

solely on whether the qualities measured by an entry level 

exam bear some relationship to the job in question would 

impermissibly write out the business necessity prong of the 

Act's chosen standard. With respect to a discriminatory 

cutoff score, the business necessity prong must be read to 

demand an inquiry into whether the score reflects the 

minimum qualifications necessary to perform successfully 

the job in question. See also EEOC Guidelines, 29 C.F.R. 

S1607.5 (H) (noting that cutoff scores should "be set so as 

 17 
to be reasonable and consistent with normal expectations 

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 supports 

application of this standard to discriminatory cutoff scores. 

The disparate impact theory of discrimination combats not 

intentional, obvious discriminatory policies, but a type of 

covert discrimination in which facially neutral practices are 

employed to exclude, unnecessarily and disparately,

protected groups from employment opportunities. Inherent 

in the adoption of this theory of discrimination is the 

recognition that an employer's job requirements may

incorporate societal standards based not upon necessity 

but rather upon historical, discriminatory biases. 14 A 

business necessity standard that wholly defers to an 

employer's judgment as to what is desirable in an employee 

therefore is completely inadequate in combating covert 

discrimination based upon societal prejudices. Only a 

business necessity doctrine that examines discriminatory 

cutoff scores in light of the minimum qualifications that are 

necessary to perform the job in question successfully can 

address adequately this subtle form of discrimination.15 

_________________________________________________________________ 

14. For an interesting discussion on male-oriented biases in the labor 

market see Maxine N. Eichner, Getting Women Work That Isn't Women's 

Work: Challenging Gender Biases in the Workplace Under Title VII, 97 

Yale L.J. 1397 (1988). See also, Hurley v. The Atlantic City Police Dept., 

___ F.3d. ___, ___ n.5, 1999 WL 150301 (3d Cir. 1999)(noting egregious 

sexual harassment to which a female police officer was subjected by her 

male colleagues); Mazus v. Department of Transp., Com. of Pa., 629 F.2d 

870, 876 (3d Cir. 1980)(Sloviter, J., dissenting)(noting allegations 

demonstrating prevalent male attitude that construction 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 result that would be 

inconsistent with the mandates of Title VII. If an employer can 

demonstrate that its discriminatory cutoff score reflects the minimum 

qualifications necessary for successful job performance, it will be able 

to 

continue to use it. If not, the employer must abandon that cutoff score, 

but is free to develop either a non-discriminatory practice which furthers 

its goals, or an equally discriminatory practice that can meet this 

 18 
Accordingly, we hold that the business necessity 

standard adopted by the Act must be interpreted in 

accordance with the standards articulated by the Supreme 

Court in Griggs and its pre-Wards Cove progeny which 

demand that a discriminatory cutoff score be shown to 

measure the minimum qualifications necessary for the 

successful performance of the job in question in order to 

survive a disparate impact challenge.16 

_________________________________________________________________ 

standard. Nothing in the Griggs business necessity standard requires 

employers to hire employees in numbers to reflect the 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 disparate impact on 

women and that SEPTA can not show that the 12 minute cutoff 

measures the minimum aerobic capacity necessary to be a successful 

transit officer, it does not follow that SEPTA would then be required to 

hire women in equal proportion to men. Several options would be 

available to SEPTA. For example, SEPTA could: 1) abandon the test as 

a hiring requirement but maintain an incentive program to encourage an 

increase in the officers' aerobic capacities; 2) validate a cutoff score 

for 

aerobic capacity that measures the minimum capacity necessary to 

successfully perform the job and maintain incentive programs to achieve 

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

excessive levels of aerobic capacity 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 options would help SEPTA 

achieve its stated goal of increasing aerobic capacity without running 

afoul of Title VII and none of these options require 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 appeals, the dissent 

asserts that this standard should not apply to SEPTA because the job of 

SEPTA transit officer implicates issues of public safety. Under the Act, 

however, our interpretation of the business necessity 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 Supreme 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 intended to endorse the 

holding of Spurlock, it could have done so affirmatively. Accordingly, 

because the Act limits our interpretation to Supreme Court 

 19 
IV. 

Although the District Court purported to apply the Act's 

"job related to the position in question and consistent with 

business necessity" standard to SEPTA's cutoff score on its 

1.5 mile run, it is clear from the District Court's

memorandum opinion that it did not apply the standard we 

have found to be implicit in Griggs and incorporated 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 New 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 business 

interests") with Wards Cove, 490 U.S. at 659 (stating that 

_________________________________________________________________ 

jurisprudence and does not otherwise endorse Spurlock, we are not at 

liberty to adopt the holding of Spurlock at this juncture. Moreover, to 

the 

extent that Spurlock and other cases from our sister courts of appeals 

can be read to suggest that minimum qualifications do not apply to 

certain types of employment, these cases are inconsistent with the 

teachings of Griggs and are accordingly uninformative 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 necessity standard to SEPTA 

is consistent with that jurisprudence because the standard itself takes 

public safety into consideration. If, for example, SEPTA can show on 

remand that the inability of a SEPTA transit officer to meet a certain 

aerobic level would significantly jeopardize public safety, this showing 

would be relevant to determine if that level is necessary for the 

successful performance of the job. Clearly a SEPTA officer who poses a 

significant risk to public safety could not be considered to be performing 

his job successfully. We are accordingly confident that application of the 

business necessity standard to SEPTA is fully consistent with the 

Supreme Court's pre-Wards Cove jurisprudence as required by the Act. 

17. See supra note 11. 

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

significant way, the legitimate employment goals of the 

employer" and noting that there is no requirement that the 

practice be essential). As we previously stated, the Wards 

Cove standard does not survive the Act. 

The District Court's application of its understanding of 

business necessity to SEPTA's business justification further 

illustrates that the District Court did not apply the 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 capacity 

cutoff measured by the 1.5 mile run.18 This conclusion 

disregards the teachings of Griggs, Albemarle and Dothard 

in which the Court made clear that judgment alone is 

_________________________________________________________________ 

18. While relying predominately upon Dr. Davis' expertise, the District 

Court does point to a study which Dr. Davis completed for Anne Arundel 

County, Maryland in which he concluded that a 42.5 mL/kg/min aerobic 

capacity predicted success as an Anne Arundel County police officer. 

Absent a finding that the work of an Anne Arundel County police officer 

is comparable to SEPTA transit officer work, afinding 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 from Dr. Davis' report 

whether the Anne Arundel study's 42.5 mL/kg/min cutoff 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 more 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 deterrent, maintaining 

maximum visibility. Occasionally, officers will come upon criminal 

activities such as assaults or robberies, but for the most part, the 

officer 

will attempt to control a situation such as disorderly conduct or force 

compliance (paying fares) without having to make an arrest."); see also 

App. at 3139 (Davis Report)(quoting experienced officer as stating "[t]he 

most important factors in my opinion of being a good officer is to be able 

to think clearly at all times an [sic] verbalize and or articulate when 

dealing with all people . . . . Running quickly is physically demanding, 

although in the transit system, most dealings are close, physical 

altercations."). In addition, it is unclear from the record whether the 

Anne Arundel study itself was properly validated. 

 21 
insufficient to validate an employer's discriminatory 

practices.19 More fundamentally, however, nowhere in its 

extensive opinion did the District Court consider whether 

Dr. Davis' 42.5 mL/kg/min cutoff reflects the minimum 

aerobic capacity necessary to perform successfully the job 

of SEPTA transit police officer. 

Instead, the District Court upheld this cutoff because it 

was "readily justifiable." Lanning, 1998 WL 341605 at *57.20 

The validation studies of SEPTA's experts upon which the 

District Court relied to support this conclusion demonstrate 

the extent to which this standard is insufficient under the 

Act. The general import of these studies is that the higher 

an officer's aerobic capacity, the better the officer is able to 

perform the job. Setting aside the validity of these 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 aerobic 

(Text continued on page 24) 

_________________________________________________________________ 

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. Davis 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 aerobic capacity of 50 

mL/kg/min to successfully perform a number of tasks." Lanning, 1998 

WL 341605 at *16 (emphasis added). Dr. Davis, however, revised this 

requirement, finding that "the goals of SEPTA could be satisfied by using 

a 42.5 mL/kg/min standard" after determining that the 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 determined that the 

lower standard would be sufficient. Where, as here, the cutoff score 

chosen has a discriminatory disparate impact, Griggs prohibits the 

establishment of exactly this type of arbitrary barrier to employment 

opportunities. 

20. The District Court seems to have derived this standard from the 

Principles for the Validation and Use of Personnel Selection Procedures 

("SIOP Principle"), principles published by the Society for Industrial and 

Organizational Psychology as a professional guideline for conducting 

validation research and personnel selection. To the extent that the SIOP 

Principles are inconsistent with the mission of Griggs and the business 

necessity standard adopted by the Act, they are not instructive. 

21. The Court has cautioned that studies done in anticipation of 

litigation to validate discriminatory employment tests that have already 

 22 
been 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 statistics 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 dimensional statistical 

presentation." Bryant v. International Sch. Servs., Inc., 675 F.2d 562, 

573 

(3d Cir. 1982). A critical evaluation of the statistical 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 sample of possible 

deficiencies in these studies: 1) While the ability to make an arrest may 

be an important aspect of the job, the absolute number of arrests or 

"arrest rates" do not necessarily correlate with successful job 

performance. See App. at 3132 (noting that SEPTA officer should 

generally attempt to control a situation without having to make an 

arrest); 2) The study on arrests and arrest rates examined a 

disproportionately large number of officers with an aerobic capacity over 

42 mL/kg/min compared to the number of officers with an aerobic 

capacity under that level which likely skewed the results. See, e.g., App. 

at 3053 (comparing arrests of 231 officers with aerobic 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 1607.14(B)(6)(noting that 

"[r]eliance upon a selection procedure which is significantly related to a 

criterion measure, but which is based upon a study involving a large 

number of subjects and has a low correlation coefficient 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' emphasis 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 single selection 

instrument which is related to only one of many job duties will be 

subject to close review); 5) SEPTA's table on thefield performance of its 

officers belies the contention that there is a strict 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 at least a 48 

mL/kg/min level who had average arrests of 13.9. See App. at 3065 

(Defendant's Exhibit 52D); 6) The study on the average 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. 

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

study showing that "more is better," however, has no 

bearing on the appropriate cutoff to reflect the minimal 

qualifications necessary to perform successfully the job in 

question. 

Dr. Siskin's testimony is particularly instructive on this 

point. Dr. Siskin testified that in view of the linear 

relationship between aerobic capacity and the arrest 

parameters, any cutoff score can be justified since higher 

aerobic capacity levels will get you more field performance 

(i.e., "more is better"). See Lanning, 1998 WL 341605 at 

*41. Under the District Court's understanding of business 

necessity, which requires only that a cutoff score be 

"readily justifiable," SEPTA, as well as any other employer 

whose jobs entail any level of physical capability, could 

employ an unnecessarily high cutoff score on its physical 

abilities entrance exam in an effort to exclude virtually all 

women by justifying this facially neutral yet discriminatory 

practice on the theory that more is better.22 This result 

contravenes Griggs and demonstrates why, under Griggs, a 

discriminatory cutoff score must be shown to measure the 

_________________________________________________________________ 

Because we are remanding for the District Court to reconsider this 

evidence in light of the Griggs standard, we need not rule on whether 

any of the District Court's prior findings as to these studies were 

clearly 

erroneous. We comment here on the validity of these studies only to 

draw the District Court's attention to these concerns 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 significant detrimental 

impact on the amount and type of employment opportunities available to 

women. Obviously, under a "more is better" theory, employers such as 

police departments, fire departments and correctional facilities could 

develop physical tests with unnecessarily high cutoffs 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 question. For example, all 

companies engaged in delivery, construction or any other type of 

physical labor would be permitted to develop unnecessary 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 the disparate impact 

theory of discrimination. 

 24 
minimum qualifications necessary to perform successfully 

the job in question.23 

V. 

For the foregoing reasons, it is clear to us that the 

District Court did not employ the business necessity 

standard implicit in Griggs and incorporated by the Act 

which requires that a discriminatory cutoff score be shown 

to measure the minimum qualifications necessary for

successful performance of the job in question in order to 

survive a disparate impact challenge. We will therefore 

vacate the judgment of the District Court and remand 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 police officer.24 

Because this is the first occasion we have had to clarify the 

_________________________________________________________________ 

23. This is not to say that studies that actually prove that "more is 

better" are always irrelevant to validation of an employer's 

discriminatory 

practice. For example, a content validated exam, such as a typing exam 

for the position of typist, which demonstrates that the applicants who 

score higher on the exam will exhibit better job performance may justify 

a rank-ordering hiring practice that is discriminatory. 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 the rarest of cases 

where the exam tests for qualities that fairly represent the totality of a 

job's responsibilities. It is unlikely that such a study could validate 

rankhiring with a discriminatory impact based upon physical attributes in 

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

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

is 

especially true in SEPTA's case, where the record indicates that SEPTA 

patrol officers encounter "running assists," the most strenuous task 

upon which SEPTA's aerobic capacity testing predominately was 

justified, at an average rate of only twice per year. Compare Lanning, 

1998 WL 341605 at *5 (finding that SEPTA has approximately 380 

running assists per year) with id. at *27 (noting that SEPTA has 190 

patrol officers). 

24. The District Court rejected as irrelevant the plaintiffs' evidence 

that 

incumbent officers had failed the physical fitness test yet successfully 

performed the job and that other police forces function well without an 

aerobic capacity admission test. See Lanning, 1998 WL 341605 at *68- 

*70. Under the standard implicit in Griggs and incorporated into the Act, 

this evidence tends to show that SEPTA's cutoff score for aerobic 

capacity does not correlate with the minimum qualifications necessary to 
perform successfully the job of SEPTA transit officer. Accordingly, this 

evidence is relevant and should be considered by the District Court on 

remand. 

 25 
Act's business necessity standard, on remand the District 

Court may wish to exercise its discretion to allow the 

parties to develop further the record in keeping with the 

standard announced here. 

 26 
WEIS, Circuit Judge, dissenting: 

The "minimum qualifications" criterion of business 

justification does not apply to all types of employment. 

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 its 

property, SEPTA instituted a three-pronged attack on the 

problem. It added a substantial number of officers,

implemented a zone method of patrol, and adopted 

standards to improve the generally poor physical condition 

of its officers. Unlike many metropolitan police 

departments, SEPTA officers are deployed alone and on 

foot, engaging in physical activities more frequently than 

other law enforcement agencies. 

The patrol zones present significant variations in 

conditions that affect the physical exertion of officers in the 

performance of their duties. Zone One, for example, has a 

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

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

large shopping mall, featuring retail theft and pursuits that 

lead into the SEPTA transit system. Zone Five, which 

includes sports complexes, is characterized by long

distances between stations. Zone Six includes the Temple 

University area, a scene of frequent crimes against

students. 

SEPTA officers must occasionally ask for assistance from 

their comrades in other zones. These calls are divided into 

two categories, "officer assists" and "officer backups." An 

"assist" requires officers to respond immediately. Often the 

only method available to get to the scene quickly is a run 

of five to eight city blocks. An officer responding to an 

"assist" must preserve enough energy to deal effectively 

with a situation once arriving on the scene. SEPTA averages 

about 380 running assists per year. "Backups" are not as 

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

SEPTA averages about 1,920 "backups" annually. 

 27 
For help in attaining its fitness goals, SEPTA turned to 

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

had recommended corrective measures for numerous law 

enforcement and government agencies. At the time Dr. 

Davis began his research for SEPTA, an officer's equipment 

load was 12 pounds; it is now nearly 26 pounds. Dr. Davis 

found that officers need "sound, intact, disease-free 

cardiovascular system[s]" to effectively perform their jobs. 

These requirements implicate aerobic capacity, i.e., the 

ability of the body to utilize oxygen during sustained 

physical activities such as running, swimming, and cycling. 

Aerobic capacity is commonly measured in units of 

milliliters of oxygen per kilogram of body weight per minute 

-- "mL/kg/min," or "mL." 

SEPTA officers typically run or jog on a daily basis 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 evidence, Dr. 

Davis concluded that SEPTA transit officers need an

aerobic capacity of 50 mL. After determining that such a 

level would have a "draconian" effect on female applicants, 

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 applicants. 

Dr. Davis had done a similar study for a fire department 

in St. Paul, Minnesota, which -- in setting a standard of 45 

mL -- required applicants to run 1.5 miles in 11 minutes 

and 40 seconds. Eighty percent of male applicants and 76% 

of female applicants passed this test. 

In addition to Dr. Davis' testimony, SEPTA also presented 

evidence from other experts to demonstrate a statistically 

significant correlation between aerobic capacity and the 

number of arrests made by individual SEPTA officers. 

Furthermore, of 207 commendations, 96% went to officers 

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 indicated 

that 51.9% of offense perpetrators had a capacity of 48 mL 

or higher, with only 27% having lower than a 42 mL rating. 

The record demonstrates that a smaller percentage of 

female applicants passed the running test than males, but 

 28 
that 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 because 

they were indifferent or unable to run for even that short a 

period of time. Thus, although there was a significant 

disparity between the pass-fail rates of male and female 

applicants, the extent of the difference appears to have 

been exaggerated to some extent by the approach taken 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 average 

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 adequate. 

Plaintiffs introduced the testimony of Dr. William 

McArdle, who suggested the use of a "relativefitness" test 

in which all applicants would be required to meet the 50th 

percentile of aerobic capacity for their gender-- 

approximately 42 mL for males, and 36 mL for females. 

However, Dr. Robert Moffatt, a defense expert who 

conducted tests of the aerobic capacity necessary to 

perform a SEPTA officer's duties, disagreed. He stated 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 42 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 existing test. 

Instead, the court found that "Dr. Davis' study, standing 

alone, met the professional standards for construct

validation and satisfies defendant's burden of 

 29 
demonstrating job relatedness and business necessity." 

Moreover, his study had sufficient empirical support 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 pertinent 

section provides: "An unlawful employment practice based 

on disparate impact is established . . . only if-- [the] 

complaining party demonstrates that a respondent uses a 

particular employment practice that causes a disparate 

impact on the basis of . . . sex . . . and the respondent fails 

to demonstrate that the challenged practice is job related 

for the position in question and consistent with business 

necessity[.]" 42 U.S.C. S 2000e-2(k)(1)(A). 

This addition to Title VII was passed in response to the 

Supreme Court's decision in Wards Cove Packing Co., Inc. 

v. Atonio, 490 U.S. 642 (1989). In that case, the Court 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 times 

with the plaintiff. See id. As to what showing would satisfy 

business justification, the Court held that "the dispositive 

issue is whether a challenged practice serves, in a

significant way, the legitimate employment goals of the 

employer." Id. However, "there is no requirement that the 

challenged practice be `essential' or `indispensable' 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 standard of 

business justification based on their reading of pre-Wards 

Cove cases. After two years of legislative struggle, Congress 

and the President agreed upon a compromise bill. Whether 

the ambiguous language of the statute accomplished that 

purpose has been the subject of lively debate.1 

_________________________________________________________________ 

1. In addition to the law review commentaries cited by the majority, see 

also Rosemary Alito, Disparate Impact Discrimination Under the 1991 

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

had used the phrase "required by business necessity," 

rather than "consistent with business necessity," as used in 

the 1991 Act. The substitution of the word "consistent" was 

considered to indicate a standard less stringent than would 

"required." In that light, a fair reading of the 1991 Act is 

"the challenged practice is job related for the position 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 view, 

Congress "punted." This conclusion is underscored by 

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 customarily 

reveal the extent of the controversy between various views. 

_________________________________________________________________ 

Civil Rights Act, 45 Rutgers L. Rev. 1011, 1033 (1993) ("Only . . . cases 

requiring proof of job-relatedness and a reasonable need for the 

challenged practice accord[ ] with both the statutory 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 The Above?, 43 Case 

W. Res. L. Rev. 287, 349 (1993) ("business necessity" has the same 

meaning as the Wards Cove phrase "serves, in a significant 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 job duties," defined in 

light of "important business goals"). 

2. The fear of quota hiring was behind the President's refusal to sign 

earlier versions of the bill. See Statement of President 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, allowing employers to hire 

on the "basis of merit and ability without the fear of unwarranted 

litigation," without leading to quotas or incentives for needless 

litigation). 

For a discussion of the drafting of the Civil Rights 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). 

 31 
See Pub. L. No. 102-166, Title I, S 105(b), 105 Stat. 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 Griggs v. 

Duke Power Co., 401 U.S. 424 (1971), and in the other 

Supreme Court decisions prior to Wards Cove Packing Co. 

v. Atonio, 490 U.S. 642 (1989)." 137 Cong. Rec. S15276 

(daily ed. Oct. 25, 1991). 

Congress' reference to the Griggs line of Supreme Court 

decisions, however, does little to clear the air because the 

language in those opinions has caused confusion. 3 The 

problem can ultimately be traced back to Griggs itself. In 

that case, which involved power-plant jobs, the Court held 

that a high school completion requirement and general 

intelligence tests that disproportionately disqualified black 

applicants were not significantly job related. The Court 

said: "The touchstone is business necessity." Griggs, 401 

U.S. at 431. However, the very next sentence reads,"[i]f an 

employment practice . . . cannot be shown to be related to 

job performance, the practice is prohibited." Id. Thus, the 

Court speaks of both "necessity" and "job-relatedness" in 

the same breath. 

In the following paragraph, we read that neither 

employment requirement is "shown to bear a demonstrable 

relationship to successful performance of the jobs for which 

it was used. Both were adopted . . . without meaningful 

study of their relationship to job-performance ability." Id. 

The Court also refers to "testing mechanisms[that are] 

unrelated to measuring job capability," "job-related 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 expound 

upon "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 employers 

_________________________________________________________________ 

3. See Peter Brandon Bayer, Mutable Characteristics and the Definition of 

Discrimination Under Title VII, 20 U.C. Davis L. Rev. 769, 822 & n.213 

(1987) ("Both the Supreme Court and lower court rulings offer a 

confusing patchwork of seemingly conflicting standards."). 

 32 
to produce data "demonstrating that the test is predictive 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 tests that 

had a disparate impact on black applicants. The issue, 

according to the Court, was whether the employer had 

shown the tests to be "job related." Id . at 408. The Court 

concluded that the employer's validation study was 

defective because it "involved no analysis of the attributes 

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 supervisors. 

See id. at 432-33. 

The portion of Albemarle most relevant to the case at 

hand focused on whether tests that take into account 

capability for promotion may be utilized if such long-range 

requirements fulfill a "genuine business need." Id. at 434. 

The employer's validation study focused on the scores 

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 because there 

had been "no clear showing that differential validation 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 involved 

written tests that allegedly had a discriminatory impact on 

black applicants for police officer positions. Although the 

suit was not brought under Title VII, the Court discussed 

Griggs and Albemarle. The district judge had concluded 

"that a positive relationship between the test and trainingcourse performance was sufficient to validate the[test], 

wholly aside from its possible relationship to actual 

performance as a police officer." Id. at 250. Significantly, 

the Supreme Court remarked that such a conclusion was 

not foreclosed by either Griggs or Albemarle and "it seems 

 33 
to us the much more sensible construction of the jobrelatedness requirement." Id. at 250-51. Dismissing

challenges to the test, the Court remarked that"some 

minimum verbal and communicative skill would be very 

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 requirements 

for prison guards could not stand. The ruling was based on 

the employer's failure to produce any evidence to correlate 

those standards with "the requisite amount of strength 

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 stated 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. Earlier in the 

body of the opinion, the Court explained that the employer 

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 employer's 

prohibition of employment to users of methadone, despite 

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 significantly 

served by--even if they do not require--[the employer's] rule 

as it applies to all methadone users including those who 

are seeking employment in non-safety-sensitive positions." 

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 question.' " 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 must be 

performed by `persons of maximum alertness and 

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

"safety sensitive," and many involved "danger to [the 

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 such as 

"business necessity," "demonstrable relationship to

successful performance of the job," "manifest relationship 

to the employment in question," "genuine business needs," 

and "essential to good job performance," have been used 

interchangeably. These varying formulations bring to mind 

Justice Holmes' observation, "A word is not a crystal, 

transparent and unchanged, it is the skin of a living 

thought and may vary greatly in color and content 

according to the circumstances and the time in which 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-Wards 

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 Court 

reexamines the subject, however, courts will continue to 

struggle with the often inconsistent phraseology employed 

in Griggs and its progeny. The definition and application 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 explain, 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 fair to assume 

that no special qualifications would be generally expected. 

In contrast, Beazer and Washington raised an additional 

important consideration -- public safety. Beazer concerned 

jobs involving serious dangers to employees as well as to 

transit passengers. In Washington, a written test 

demonstrating an applicant's ability to complete police 

officer training was job-related, even apart from its 

 35 
relationship to actual performance as a police officer. The 

impact of public safety concerns on employee qualifications 

is inescapable, and serves to differentiate those positions 

from lower-level, nonsafety-sensitive ones.4 

The Courts of Appeals have explicitly recognized the 

relevance of safety considerations in a series of decisions 

beginning with Spurlock v. United Airlines, Inc., 475 F.2d 

216 (10th Cir. 1972). In that case, an airline required that 

applicants for flight officer positions have a college degree 

and a minimum of 500 flight hours. The Court, citing 

Griggs, held that where "the job clearly requires a high 

degree of skill and the economic and human risks involved 

in hiring an unqualified applicant are great, the employer 

bears a correspondingly lighter burden to show his 

employment criteria are job related." Id. at 219. Because, 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 specific 

amount of college education, no history of recent marijuana 

usage, and a negative history of traffic violations. Despite 

findings of disparate impact, the Court upheld the 

requirements. Having reviewed the many cases following 

Spurlock, the Court had "no difficulty . . . equating 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 215 (internal 

quotation marks omitted). The degree of public risk and 

responsibility alone "would warrant examination of the job 

relatedness of the . . . education requirement under the 

lighter standard imposed under Spurlock and its progeny." 

Id. at 215. 

_________________________________________________________________ 

4. See Andrew C. Spiropoulos, Defining the Business Necessity Defense to 

the Disparate Impact Cause of Action: Finding the Golden Mean, 74 N.C. 

L. Rev. 1479 (1996). 

 36 
Observing the nature of the positions at issue in Griggs 

and Albemarle, Davis noted that in neither case did the 

Supreme Court suggest that those jobs "were noteworthy 

for their dangerousness or importance to the public

welfare." Id. at 210. In contrast, the employment under 

consideration in Davis directly implicated public safety 

concerns. See id. at 211. It is interesting that Justice 

Blackmun, in Watson v. Fort Worth Bank & Trust, 487 U.S. 

977 (1988) (plurality op.), objecting to what he considered 

to be a tendency to weaken the employer's burden, cited 

Davis favorably, stating that "[t]he proper means of 

establishing business necessity will vary with the type and 

size of the business in question, as well as the particular 

job" in question. Id. at 1007. (Blackmun, J., concurring in 

part and concurring in the judgment).5 

In a post-Wards Cove case involving firefighters, the 

Court of Appeals for the Eleventh Circuit noted that 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." Fitzpatrick 

v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir. 1993) (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 therefore 

deemed to be `required by business necessity' under Title 

VII." Id. 

In a similar case, the Court of Appeals for the Eighth 

Circuit wrote that "the law does not require the city to put 

the lives of [plaintiff] and his fellow firefighters at risk by 

taking the chance that he is fit for duty when solid 

scientific studies indicate that persons with test results 

similar to his are not." Smith v. City of Des Moines, 99 F.3d 

1466, 1473 (8th Cir. 1996). Other Courts of Appeals have 

_________________________________________________________________ 

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 stringent 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)). 

 37 
reached similar conclusions in cases involving safetysensitive positions such as truck drivers, bus drivers, 

firefighters, and police officers.6 

IV. 

The issues that separate the parties are straightforward. 

Plaintiffs do not seriously contest the fact that aerobic 

capacity is a valid predictor of efficient job performance as 

a transit police officer. They do not challenge the finding 

that running for 1.5 miles is an effective way to measure 

aerobic capacity. Nor apparently do they suggest that 42.5 

mL is an inappropriate cut-off for male applicants: they 

implicitly accept this standard by advancing Dr. McArdle's 

alternative test, which would use that score for males and 

a lower one for females. 

Even the government plaintiff concedes that an employer 

may improve its workforce. U.S. Br. at 35 (citing Griggs, 401 

U.S. at 431).7 Griggs, in turn, stressed that tests "must 

_________________________________________________________________ 

6. See, e.g., York v. American Telephone & Telegraph Co., 95 F.3d 948, 

952, 959 (10th Cir. 1996) (powerhouse operating engineers); 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, 997-98 (5th Cir. 1984) 

(flight 

attendants); Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 

1261-63 (6th Cir. 1981) (truck yard employees); Harriss v. Pan American 

World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1980) (flight 

attendants); McCosh v. City of Grand Forks, 628 F.2d 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 history 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 employer to lower or change 

the occupational qualifications he sets for his employees . . . ." 110 

Cong. Rec. 7246-47 (April 8, 1964) (interpretive memorandum of Sen. 

Case). Senators Clark and Case stated that the "employer 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, will establish the 

standards." Id. at 13088 (June 9, 1964). Thus, the legislative history of 

Title VII "clearly reveals that Congress was concerned about preserving 

employer freedom, and that it acted to mandate employer color-blindness 

with as little intrusion into the free enterprise system as possible." 

Contreras v. City of Los Angeles, 656 F.2d 1267, 1278 (9th Cir. 1981). 

 38 
measure the person for the job and not the person in 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 appropriately 

heightened performance standards. 

A fair appraisal of the plaintiffs' objection is that the 

running test's cut-off requires female applicants to run 

faster than a majority of women can run without training. 

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 substantially 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 otherwise, 

such "measures could be instituted only once accidents 

had occurred rather than in order to avert accidents." 

Fitzpatrick, 2 F.3d at 1120-21. 

Here, where applicants have it within their power to 

prepare for the running test, they may properly be expected 

to do so. In view of the important public safety concerns at 

issue, it is not unreasonable to expect all applicants -- 

female or male -- to take the necessary steps in order 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 needs with 

respect to aerobic capacity are not clearly erroneous. This 

conclusion is mandated by the standard that clear error 

exists only when, on the entire evidence, a court is left with 

the definite, firm conviction that a mistake has been 

committed. See Anderson v. City of Bessemer City, 470 U.S. 

564, 573 (1985). If the account of the District Court is 

"plausible in light of the record viewed in its entirety," we 

may not reverse even if we are convinced that had we "been 

sitting as the trier of fact, [we] would have weighed the 

evidence differently." Id. at 574. 

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

evidence, the factfinder's choice between them cannot be 

clearly erroneous." Id. "This is so even when the district 

court's findings . . . are based instead on physical or 

documentary evidence or inferences from other facts." Id. 

Where findings are based on credibility determinations, 

appellate review accords even greater deference to the 

findings of the District Court. See id. at 575. Courts 

routinely hold that business justification is reviewed 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 SEPTA 

officer, that it is reasonable, and that it is attainable by 

otherwise physically fit female applicants with moderate 

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 rejected the 

plaintiffs' contention that "business necessity" under the 

statute is governed by a footnote in Dothard that states: "[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 Griggs 

and Beazer, the District Court stated that SEPTA need only 

show that its tests "significantly serve, but are neither 

required by nor necessary to, the employer's legitimate 

business interests" -- in other words, that it "bears a 

manifest relationship" to the employment in question. 

In disagreeing with the criteria used by the District 

Court, the majority holds that "a discriminatory cutoff score 

is impermissible unless shown to measure the minimum 

qualifications necessary for successful performance of the 

job in question." The difficulties presented by this standard 

are illustrated by the testimony of Dr. McArdle, the 

plaintiffs' expert. In essence, he proposed that female 

applicants be expected to meet 50% of their aerobic

capacity, translating to 36 mL, but that males continue at 

the 50% level of 42.5 mL. That standard would, of course, 

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 SEPTA 

transit police. 

 40 
With 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. Undoubtedly, 

candidates who fail the running test -- female or male -- 

may have other qualities of particular value to SEPTA, but 

they must possess the requisite aerobic capacity as well. No 

matter how laudable it is to reduce job discrimination, to 

achieve this goal by lowering important public safety 

standards presents an unacceptable risk. 

Aerobic capacity is an objective, measurable factor which 

gauges the ability of a human being to perform physical 

activity. The aerobic demands on the human system are 

affected by absolutes such as the distance traveled, the 

speed, the number of steps to be climbed, and similar 

factors. Governmental agency pronouncements will not 

shorten distances, reduce the number of steps, or decrease 

the aerobic capacity of perpetrators to match the reduced 

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 individuals 

simply cannot perform the job efficiently. To the extent that 

they cannot, their hire adversely affects public safety. 

_________________________________________________________________ 

8. Although the government is a plaintiff in this dispute, I would note 

that some agencies take a somewhat different tack on the issue of 

aerobic fitness. The U.S. Forest Service, for instance, requires 

firefighters 

to have an aerobic capacity of 45 to 48 mL, and recommends 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 available to children 

who meet the 85th percentile of fitness by meeting target levels in events 

such as a one-mile run. See Qualifying Standards (updated Oct. 15, 

1998). http://www.indiana.edu/#A1#preschal/qualifying.html>. 

The Centers For Disease Control and Prevention lament that more 

than 60% of U.S. adults do not engage in the recommended amount of 

activity, and 25% are not active at all. See Physical Activity and Health, 

Adults (viewed May 7, 1999) http://www.cdc.gov/nccdphp/sgr/ 

adults.htm>. 

 41 
The current Uniform Guidelines on Employee Selection 

Procedures, 29 C.F.R. S 1607 ("EEOC Guidelines"), are not 

as strict as the standard suggested by the majority. In 

discussing cut-off scores, the Guidelines explicitly state 

that "they should normally be set so as to be reasonable 

and consistent with normal expectations of acceptable 

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 important 

elements" -- has been cited by the Supreme Court with 

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 1607.5(B) 

(1998). 

Further, Albemarle's reference to "minimal qualifications" 

was directed only to the inappropriateness of using a test 

geared towards higher-level jobs as a screen for entry-level 

positions. See Albemarle, 422 U.S. at 434. This holding, 

which is minimally relevant to the matter at hand, is 

doubly inapplicable when the job affects public safety. See 

Davis, 777 F.2d at 211 n.5.9 

I see no need to remand this case to the District Court. 

Whatever standard is used, the findings of fact require an 

affirmance. Although the District Court rejected the 

plaintiffs' argument that the Dothard footnote, rather than 

Beazer, supplied the proper standard, the factual findings 

make it clear that under either formulation, the District 

Court reached the correct result. 

The Dothard footnote states that the challenged practice 

must be "necessary to safe and efficient job performance." 

Dothard, 433 U.S. at 331 n.14. The District Court, also in 

a footnote, wrote "physical fitness is only one trait or ability 

required of SEPTA officers, [but] it is a trait or ability that 

is necessary for and critical to the successful performance 

of the job, and thus SEPTA should be able to test for such 

_________________________________________________________________ 

9. The plaintiffs also suggest that SEPTA's validation studies were 

insufficient. However, strict compliance with the EEOC 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 safety, courts have held 

that empirical validation is not required. See Boyd, 568 F.2d at 54. 

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

footnote by concluding that not only is physical fitness 

"necessary" to safe and efficient job performance as SEPTA 

officers, but that it is "critical" to successful performance of 

these jobs. Moreover, the finding clearly meets even 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 findings here 

satisfy Griggs' requirement of "business necessity." 

Unquestionably, SEPTA's test is job-related and there 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 convincing that 

42.5 mL is a reasonable cut-off point for determining the 

physical ability necessary for successful performance of the 

job. Consequently, even under the plaintiffs' reading of the 

1991 Act, which relies so much on Dothard, the judgment 

in favor of the defendant should be affirmed. 

To my mind, the correct standard for this case is that 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 Wards 

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 Courts of 

Appeals, both in pre- and post-Wards Cove cases. Nothing 

in the legislative history casts any doubt on the continued 

viability of these opinions. 

Although it did not cite Spurlock-Davis, the District Court 

stated in its conclusions of law that "employers such as 

SEPTA should be encouraged to improve the efficiency of its 

workforce, especially where public safety is implicated by 

the particular job as it is with SEPTA." More emphatically, 

it stated that "[t]he Court simply will not condone dilution 

of readily obtainable physical abilities standards that serve 

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to protect the public safety in order to allow unfit 

candidates, whether they are male or female, to become 

SEPTA transit police officers." 

Although the District Court only inferentially applied 

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 performance 

of SEPTA officers. In cases such as these, courts should 

decline to lower standards in an effort to reduce disparate 

impact when that goal comes at the expense of public 

safety. Due deference should be afforded to the experience 

of specialized employers in setting appropriate requirements 

for safety-sensitive positions. 

V. 

The Lanning appellants propose a number of alternative 

practices that they suggest would have a lesser disparate 

impact while still serving SEPTA's goals. First, they suggest 

that SEPTA select medically fit applicants who pass fitness 

requirements at the end of their training at the Philadelphia 

Police Academy. Second, as noted earlier, they argue in 

favor of a relative fitness test (i.e., one with a lower cut-off 

point for females). Third, they prompt SEPTA to propose an 

alternative. 

For plaintiffs to establish a satisfactory alternative, 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[employer] 

refuses to adopt such alternative employment practice." 42 

U.S.C. S 2000e-2(k)(1)(A)(ii). To meet this burden, the 

plaintiffs' proposed alternatives must have less disparate 

impact and "also serve the employer's legitimate interest in 

`efficient and trustworthy workmanship.' " Albemarle, 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 

_________________________________________________________________ 

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 (1937)). 

 44 
Watson, the alternative test must "be equally as effective as 

the challenged practice in serving the employer's legitimate 

business goals." Watson, 487 U.S. at 998. 

The District Court found that none of the plaintiffs' 

proposals served SEPTA's legitimate interest in having a 

more physically fit work force. If SEPTA may require an 

aerobic capacity of 42.5 mL after training at the police 

academy, as plaintiffs propose, it is unclear how that 

practice would be any less discriminatory than requiring it 

before hire. In short, that plan would simply require that 

training be on "company time" rather than on that of the 

applicants. 

As to the relative fitness test proposed by the plaintiffs' 

expert, the factual findings demonstrate that officers with a 

capacity of 36 mL do not serve SEPTA's needs as well as 

the required standard of 42.5 mL.11 Finally, the proposal 

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 practice. 

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 potential barrier to the 

relative fitness test. Subsection 2000e-2(l) prohibits "in connection with 

the selection or referral of applicants or candidates for employment . . . 

to . . . use different cutoff scores for . . . employment 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 Court 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 bases. 

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