There is much confusion in law enforcement about the implementation and defense of valid tests that predict an officer's ability to perform the infrequent but possibly critical physical tasks associated with the job. Fred Rafilson's article in the March 2000 issue, "Candidate Physical Fitness Testing," adds to that confusion.
Rafilson is of the opinion that job-task simulation testing (JTST) is preferential to fitness testing. He also believes that if fitness testing is utilized, age- and gender-based standards are permissible. Everyone is entitled to an opinion, but by citing court cases as support, Rafilson has gone beyond presenting opinion. His interpretation of the findings of the referenced cases could have serious negative consequences for agencies following his recommendations.
Neither Powell v. Reno nor Peanick v. Reno show that different cutoff scores on fitness tests can be defended. In Peanick, the U.S. Court of Appeals for the 8th Circuit decided the case on completely different grounds. The Powell decision is a District Court decision, which was based on a narrow point of law. That decision only binds the parties to that particular case.
Unless Congress changes the law, the language of both the Civil Rights Act of 1991 (CRA91) and the Americans with Disabilities Act (ADA) clearly indicate it is illegal to have different standards for the same job. CRA91 says, "it shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. " The ADA prohibits employers from denying employment to "an otherwise qualified individual with a disability who, with or without reasonable accommodation, can perform the minimum essential functions of the employment position that such individual holds or desires. "
For Rafilson to suggest that an agency choosing to use the Cooper age and gender norms "need not worry about legal challenges based on sex or age discrimination" strikes us as perilous legal advice. There is nothing job-related about any particular point on the Cooper norms. Data from validation studies we have conducted consistently demonstrate that the age and gender percentile rankings do not predict the ability to perform essential physical job tasks.
Further, it defies logic that officers expected to perform the same physical functions of a job be held to different standards. If the standards are job-related, they must relate to the job, not a particular incumbent's age or gender. If the standards are not job-related, why use them?
Rafilson likewise bootstraps his opinion regarding the better type of testing with his misleading description of the findings of the Lanning v. SEPTA case. The reason that SEPTA was unable to defend their fitness standard in this case was because they failed to present evidence proving that the standard was predictive of the minimum levels of performance necessary to do the job. The court did not say that the JTST was a better model, nor did the court say that the SEPTA's fitness tests and standards were unlawful. The court did say that a standard resulting in disparate impact is lawful if it can be shown to predict the "minimum" level of performance necessary to perform essential job functions.
While content validation of a test and standard is more easily understood, we can validate a fitness test using a combination of construct and criterion validation. All are acceptable under the provisions of the Uniform Guidelines, and in fact the latter two are considered more powerful by statisticians.
With over a century of combined experience in this area, our perception of how physical performance testing experts view the JTST versus fitness test question runs counter to Rafilson's. …