In Blake v. Town of Los angeles, 595 F.2d 1367, 19 EPD ¶ 9251 (9th Cir. 1979), the court looked at Dothard, supra and concluded that the plaintiffs established a prima facie case of sex discrimination by demonstrating that the height requirement resulted in the selection of applicants in a significantly discriminatory pattern, i.age., 87% of all women, as compared to 20% of all men, were excluded. This was sufficient to establish a prima facie case without a showing of discriminatory intent. The court was not persuaded by respondent’s argument that taller officers have the advantage in subduing suspects and observing field situations, so as to make the height requirement a business necessity.
(a) General –
Many height statutes for employees such as police officers, state troopers, firefighters, correctional counselors, flight attendants, and pilots contain height ranges, e.grams., 5’6″ to 6’5″. Although, as was suggested in § 621.2 above, many Commission decisions and court cases involve minimum height requirements, few deal with maximum height requirements. It is nonetheless conceivable that charges could be brought challenging a maximum height requirement as discriminatory. Such charges might have the following form.
Analogy (1) – R, police force, has a maximum height requirement of 6’5″. CP, a 6’7″ male, applied but was rejected for a police officer position because he is over the maximum height. CP alleges that this constitutes discrimination against him because of his sex (male) because of national statistics which show that women are on average shorter than men. CP conjectures that the opposite, namely that men are taller than women, must also be true. Accordingly, men must be disproportionately excluded from employment by a maximum height requirement, in the same manner as women are disproportionately excluded from employment by a minimum height requirement.
Example (2) – R Birmingham escort, airlines, has a maximum 6’5″ height requirement for pilots. CP, a 6’6″ Black candidate for a pilot trainee position, alleges that he was rejected, not because he exceeded the maximum height, but because of his race (Black). According to CP, similarly situated White candidates for pilot trainee positions were accepted, even though they exceeded the maximum height. Investigation revealed that R did in fact accept and train Whites who were over 6’5″ and that R employed White pilots who exceeded the maximum height. R had no Black pilots, and no Blacks were accepted as pilot trainees.
Because the significantly more than instances highly recommend, costs would-be presented based on disparate cures otherwise negative impact of an optimum peak requirement, as well as the Fee could have jurisdiction along the case of the latest charges.
(b) Different Procedures –
Different procedures happens when a protected category or classification representative try handled quicker favorably than many other likewise dependent teams to own causes banned around Term VII. (See § 604, Ideas of Discrimination.) Which very first principle can be applied so you can costs associated with restrict top requirements. Hence, absent a legitimate, nondiscriminatory cause, discrimination might result on the imposition of different maximum peak criteria if any limitation peak standards having females in the place of likewise established men group. (Understand the examples within the § 621.3(a), above.)
Even though there are not any Percentage choices dealing with disparate treatment because of entry to a maximum level requisite, the new EOS are able to use might different medication research set forth within the § 604, Ideas out-of Discrimination, to respond to such as charges so that as the basics of drafting new LOD.
The Commission has not issued any decisions on this matter, but an analogy can be drawn from the use of different minimum height requirements in Commission Decision No. 79-19, supra.