Currently police agencies are employing variants of three basic forms of physical ability testing: job simulation exercises, physical agility and/or stamina tests, and norm referenced physical fitness or "wellness" tests. Although job simulation exercises superficially appear most defensible, they lack benchmark standards of minimal performance levels. Physical agility tests can be administered more economically, safely, and conveniently, but generally have substantial adverse impact. Norm referenced wellness tests are gaining in popularity because they solve some of the problems of both simulation exercises and physical agility tests, but are probably least defensible as directly job related. A dominant methodology has yet to emerge from either usage or court decisions.
Issues Relating to Physical Standards Validation
Adverse impact easily occurs with regard to the imposition of physical selection standards. Although such impact is not normally noted among racial groups, it does exist with regard to an important protected class, females. All that is necessary is that a prima facie case of discrimination be established. This can be done by evidence of statistical disparities alone. See Vanguard Justice Society, Inc. v. Hughes, 592 F.Supp. 245,255 (D.C. MD. 1984). Once adverse impact is established, it is up to the employer to demonstrate by a preponderance of the evidence that "any given requirement (has) a manifest relationship to the employment in question" in order to avert a finding of discrimination. There are various ways that plaintiffs can demonstrate that a particular requirement has an adverse effect. See Eison v. City of Knoxville, 570 F.Supp. 11, 33 FEP cases 1141 (D.C. Tenn., 1983); Pina v. City of East Providence, 492 F.Supp. 1240, 31 FEP 230 (D.C.R., 1980).
It is possible to prove that physical tests are job related to the police occupation. In Eison v. City of Knoxville, the police academy did demonstrate that the test, consisting of sit-ups, leg lifts, squat thrusts, pull-ups, and a two-mile run, were related to physical traits deemed necessary in police officers. However, similar cases have been lost. Most important is Burney v. City of Pawtucket, 559 F.Supp. 34 FEP 1274 BCR 1, (1983). The U.S. District Court examined a sex discrimination charge stemming from minimum physical training standards employed by the Rhode Island police training academy. A commission on standards and training fixed standards for admission to and graduation from the academy. The commission was also empowered and directed to establish minimum police training requirements. Rhode Island law requires the successful completion of the basic police training course before a recruit can be certified as a police officer. The district court examined both the pretest and post test minimum physical training requirements. It concluded that the standards had an adverse impact on women.
The pretest involved seven subparts, of which recruits were required to pass five. Recognizing that the physical abilities of women are different from mens', Rhode Island utilized a standard deviation below the mean for men as a cut off point for women. The defendants conceded that the cut off scores established for the pretest were fairly arbitrary, but defended them on the basis that they were also quite lenient.
The court noted that it was not blind to the obvious, the fact that physical decrepitude at some point must inhibit the proper performance of police duties. However, it found that there had been no effort to correlate performance on the physical test used at the academy and occupational performance. The academy defended its post test and graduation requirements on pragmatic arguments, such as "human experience" and "experience of police officers on the job." The rationale that physical training requirements are appropriate because they appear appropriate was found "convenient" by the court, but "totally lacking in legal merit. …