Y. 1978), a police department’s applying of other minimal peak requirements for males rather than ladies is found so you’re able to make-up intercourse discrimination

In the Percentage Choice Zero. 79-19, CCH A position Strategies Guide ¶ 6749, a masculine, 5’6″ high, challenged the use of the minimum, 5’5″ ladies and you can 5’9″ men, height demands and you can so-called whenever he had been a female he could have entitled to a police cadet updates. The brand new respondent may either establish a beneficial uniform height needs you to definitely do n’t have a bad impact considering battle, intercourse, or national source, or establish the height criteria comprises a corporate need.

In Commission Decision No. 76-30, CCH A career Methods Guide ¶ 6624, brand new Fee located no proof of adverse perception facing ladies that have admiration in order to a blank unsupported allegation from work denial predicated on sex, because of the very least top requirements, where there clearly was no basic top policy, and no one had previously become declined predicated on peak. Together with, you will find no proof of different cures. The earlier incumbent, the fresh new selectee, together with billing team was most of the ladies, and there is zero proof you to a smaller male won’t have become refused.

The court in You.S. v. Lee way Motor Cargo, Inc., 7 EPD ¶ 9066 (D.C. Ok. 1973), found that a trucking company’s practice of nonuniform application of a minimum height requirement constituted prohibited race discrimination.

(c) Bad Feeling —

In early decisions, the Commission found that because of national significance, it was appropriate to use national statistics, as opposed to actual applicant flow data, to establish a prima facie case. The Commission also found that many of the employer proffered justifications for imposing minimum height requirements were not adequate to establish a business necessity defensemission Decision No. 71-1529, CCH EEOC Decisions (1973) ¶ 6231; Commission Decision No. 71-2643, CCH EEOC Decisions (1973) ¶ 6286; and Commission Decision No. 71-1418, CCH EEOC Decisions (1973) ¶ 6223. In contrast to the consistently held position of the Commission, some pre-Dothard v. Rawlinson, supra court cases came to different conclusions. Smith v. Troyan, 520 F.2d 492, 10 EPD ¶ 10,263 (6th Cir. 1975); Castro v. Beecher, 459 F.2d 725, 4 EPD ¶ 7783 (1st Cir. 1972). The Supreme Court in Dothard v. Rawlinson, supra, however, agreed with the Commission’s position and used national statistics to find that minimum height and weight requirements were discriminatory and that unsupported assertions about strength were inadequate to constitute a business necessity defense.

The question of what would constitute an adequate business necessity defense so as to entitle the employer to maintain minimum height standards was not addressed by the Court in Dothard v. Rawlinson, supra. On a case-by-case basis, Commission decisions and court cases have determined what things do not constitute an adequate business necessity defense. The EOS should therefore refer to the ples set out in the following section for guidance. Where, however, the business necessity of a minimum height requirement for airline pilots and navigators is at issue, the matter is non-CDP, and the Office of Legal Counsel, Guidance Division should be contacted for assistance.

Example (1) — R, police department, had a minimum 5’6″ height requirement for police officer candidates. R’s police force was 98% White male, and 2% Black male. There were no female or Hispanic officers, even though the SMSA was 53% female and 5% Hispanic. CPs, female and Hispanic rejected job applicants, filed charges alleging that their rejections, based on failure to meet the minimum height requirement, were discriminatory because their protected groups were disproportionately excluded from consideration. To buttress this argument, they introduced statistics showing that on a national basis, while only 3% of Black or White males were excluded by the 5’6″ requirement, 87% of females and 88% of Hispanics were excluded. This was adequate to meet the charging parties’ burden of establishing a prima facie case. In its defense the respondent had its supervisory personnel testify that the minimum height requirement was necessary for the safe and efficient operation of its business. According to respondent, taller officers enjoyed a psychological advantage and thus would less often be attacked, were better able to subdue suspects, and could better observe field situations. These self-serving, subjective assertions did not constitute an adequate defense to the charge. They did not fairly and substantially relate to the performance of the duties of a police officer. Accord Horace v. City of Pontiac, 624 F.2d 765, 23 EPD ¶ 31,069 (6th Cir. 1980), and Cutting edge Fairness Area Inc. v. Hughes, 471 F. Supp. 670, 20 EPD ¶ 30,077 (D.C. Md. 1979).