Monthly Law Journal Article: Weight and Fitness Requirements, 2008 (12) AELE Mo. L. J. 201.

     A male flunked out of the FBI Academy by failing by one push-up to complete the 30 push-ups required of male trainees. He sued for sex discrimination on the basis that female trainees were only required to do 14 push-ups. The trial court granted summary judgment to the plaintiff on his sex discrimination claim, and the defendant appealed. The federal appeals court held that an employer does not violate Title VII when it uses physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each. Because the trial court failed to apply this rule in reaching its decision, further proceedings were required. Bauer v. Lynch, #14-2323, 2016 U.S. App. Lexis 379 (4th Cir.).

     Ohio State Employment Relations Board denies an unfair labor practice charge that management unilaterally implemented a fitness evaluation as part of the promotional process for deputy sheriffs. The Board found that the fitness evaluation is voluntary and is not a requirement for promotion. FOP L-101 and Butler Co. Sheriff, #05-ULP-09-0509, 23 OPER 30, 2006 OPER (LRP) Lexis 31 (Ohio SERB 2006). {N/R}
     N.J. appellate court holds that a compulsory annual medical examination of police officers, which requires disclosure of medical history as well as blood and urine testing, does not violate the state or federal constitutions, and is less intrusive on privacy than random drug and alcohol testing. New Jersey Transit PBA L-304 v. New Jersey Transit, #A-5628-03T2, 384 N.J. Super. 512, 895 A.2d 472, 2006 N.J. Super. Lexis 108 (App. Div. 2006). [2006 FP Jul]
     Federal court rejects a police applicant test that disproportionately disqualified women applicants because it contained sit-ups and push-ups components that lacked criterion-related validity. United States v. City of Erie, #04-4, 411 F.Supp.2d 524, 2005 U.S. Dist. Lexis 33397 (W.D. Pa. 2005). [2006 FP Jun]
     Federal court finds that a Pennsylvania city's physical abilities test for police applicants had a disparate impact on women applicants and was not job-related or consistent with business necessity. United States v. Erie, Penna., #04-4, 352 F. Supp. 2d 1105, 2005 U.S. Dist. Lexis 33397 (W.D. Pa. 2005). [2006 FP Mar]
     Federal appeals panel rejects a gender discrimination suit by a vice sergeant who failed the fitness test when her job was combined with the SWAT unit into a special enforcement unit. Male vice officers had to pass the same test. Stahl v. Bd. of Cmsnrs. of Unif. Govt. Wyandotte Co./Kansas City, KS, #03-3068, 101 Fed. Appx. 316, 2004 U.S. App. Lexis 11476 (10th Cir. Unpub. 2004). [2004 FP Oct]
     FLRA regional office concludes that management, in creating a physical fitness program for Pentagon police officers, was not required to bargain over a grandfather clause or the creation of a Medical Review and Physical Fitness Board. Pentagon Force Protection Agency and Frat. Order of Police DPS Labor Committee, FLRA Case #WA-CA-04-0251 (Wash. Region, 2004). [2004 FP Aug]
     DoJ sues a Pennsylvania city over allegedly gender-biased police entry tests. Applicants had to run a 220-yard obstacle course in 90 seconds; there was a pass rate of 71% for males and 13% for females. U.S. v. City of Erie, #04-CV-4 (W.D. Pa. filed 2004). {N/R}
     Federal court rejects the necessity of a timed, five-part agility test for prison chaplains. One size fits all testing was unnecessary in the case of clergy. Jeffrey v. Ashcroft, #3:CV-00-1442, 2003 U.S. Dist. Lexis 17015 (E.D.Pa. 2003). [Dec FP 2003]
     A divided federal appeals court, in its second opinion, upholds a 1.5 mile-12 minute run requirement that disqualified most women candidates for transit police officer. Lanning v. SEPTA, #01-1040, 2002 U.S. App. Lexis 21506 (3rd Cir. 10/15/2002). [2002 FP Dec]
     Justice Dept. drops its opposition to a timed run used to screen transit police officers in Philadelphia (as reported in The Legal Intelligencer Oct. 5, 2001). The ruling appealed from upheld a transit police force requirement that all applicants run 1.5 miles in 12 minutes or less. The trial court ruled (for a second time) that the test did not unlawfully discriminate against women. Lanning v. SEPTA, #97-0593, 2000 U.S. Dist. Lexis 17612, 84 FEP Cases (BNA) 1012 (E.D. Pa. 12/7/2000). [2001 FP 9-10 and 154-5]
     Unilaterally implementing a requirement that firefighters undergo and pass, respirator fitness examinations was mandatorily negotiable. Utica Prof. F/F L-32 and City of Utica, NY PERB #U-18370, 32 NYPER (LRP) P4570, 1999 NYPER (LRP) Lexis 99 (1999). {N/R}
     The protocol of examining a police officer for a back injury did not constitute treatment or create a physician-patient relationship. The exam was for the convenience of the employer, and his medical malpractice action must fail. Durso v. City of N.Y., 673 N.Y.S.2d 651 (A.D. 1998). {N/R}
     Third Circuit overturns a 1.5 mile-12 min. run requirement that disqualified most women police officer candidates; test was unrelated to overall job performance. Supreme Court denies review. Lanning v. SEPTA, 1999 U.S. App. Lexis 14607, 181 F.3d 478, 80 FEP Cases (BNA) 221 (3rd Cir), reversing 1998 U.S. Dist. Lexis 9388, 1998 WL 341605 (E.D.Pa.); cert. den. 120 S.Ct. 970, 2000 U.S. Lexis 820. [1999 FP 137-8; see 1998 FP 138-140 for prior decis.] Note: on remand, District Court again upheld the run requirements as a business necessity; see Lanning v. SEPTA, 2000 U.S. Dist. Lexis 17612 (E.D. Pa., Dec. 7, 2000).
     Federal appeals court rejects suit by Ohio state troopers who challenged physical fitness regulations as discriminatory. They were neither disabled nor "regarded" as impaired. Andrews v. Ohio, 104 F.3d 803, 1997 U.S. App. Lexis 457 (6th Cir.). [1997 FP 58-9]
     Management had a duty to bargain with firefighters" union before implementing a mandatory agility test, where discipline could be imposed on those who declined to participate. Meridian (Twp. of) and F/F Assn. of Mich., MERC #C95-H-174, 9 MPER (LRP) ¶ 27,057, 1996 MPER (LRP) Lexis 38. [1997 FP 20]
     Federal appeals court affirms termination of fire captain, with a VO2-Max of 28.9, who failed a spirometer test. VO2-Max requirement of 33.5 upheld in an ADA and ADEA challenge. Smith v. Des Moines, #95-3802, 99 F.3d 1466, 1996 U.S. App. Lexis 29340, 72 FEP Cases (BNA) 628, 6 AD Cases (BNA) 14 (8th Cir. 1996). [1997 FP 11]
     Oregon arbitrator finds that a fire dist. violated the employment agreement by ordering firefighters to perform an endurance test. Klamath Falls Fire Dist. and K.F. Firefighters L-890, 106 LA (BNA) 789 (Buchanan, 1996). [1996 FP 153-4
     Iowa city could adopt an annual physical fitness test for the retention of firefighters, but those who fail it must be allowed to challenge the validity of the test. Des Moines v. Civil Serv. Cmsn., 540 N.W.2d 52 (Iowa 1995). [1996 FP 105]
     Firefighter applicant who was injured while taking a preemployment agility test could recover against the municipality for any negligence. A “release of all liabilities” form was unenforceable and against public policy. White v. Vil. of Homewood, 628 N.E.2d 616 (Ill.App. 1993). {N/R}
     EEOC's A.D.A. Guidelines allow pre-offer agility and physical fitness tests provided they are job-related and necessary. EEOC: Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A., FEP Manual (BNA) 405:7208-09 (#748, 1994). [1994 FP 138]
     N.H. Federal Court enjoins use of biased firefighter agility tests and orders employment of a rejected woman applicant. Legault v. aRusso, 64 FEP Cases (BNA) 170 (D.N.H. 1994). [1994 FP 104-5]
     St. Paul Fire Dept. settles a sex discrimination suit and formally adopts the Davis Criterion Task Test. Minn. Dept. of Human Rts. v. City of St. Paul, #8-1700-3224-2; 28 (1380) G.E.R.R. 1143 (M.O.A.H., 1990) and 32 (1556) G.E.R.R. (BNA) 362 (M.O.A.H., 1994). [1994 FP 93-4]
     Justice Department obtains consent decree against Delaware City that rejected female applicants who failed physical tests. U.S. v. New Castle County, Del., U.S. Dist. Ct. (D. Del. 1984).
     Preservice agility tests for St. Paul Fire Dept. ruled discriminatory and unsupported by realistic job requirements. Minn. Dept. of Human Rts. v. City of St. Paul, Office of Admin. Hrgs. #8-1700-3224-2, 28 (1380) G.E.R.R. (BNA) 1143 (8/24/90). Case later settled; see 94 FP 93-4.
     Federal court in Cleveland upholds physical agility tests for firefighter applicants; court concludes that anaerobic component is more important than aerobic component. Zamlen v. City of Cleveland, 48 FEP Cases (BNA) 1489 (N. D. Ohio 1989).
     Federal court rejects physical agility test in Illinois Police Department insufficient test validity. Thomas v. City of Evanston, 610 F.Supp. 422 (N.D. Ill. 1985).
     Lowering physical agility test scores for all does not discriminate against male applicants. Patrolmen's Benevolent Assn. v. Township of East Brunswick, 180 N.J. Super. 68, 433 A.2d 813 (A.D. 1981).
     Appellate court upholds rejection of police applicant who failed the running test. He was not entitled to substitute a different test because another candidate was allowed to do so. Ferrante v. Niagara Co., 551 N.Y.S.2d 134 (A.D. 1990).
     Appellate court says injunction is not a proper way to contest validity of new physical endurance standards of correctional officers who are selected for or retained in an emergency response unit. Eberle v. State of Mo. Dept. of Corrections, 779 S.W.2d 302 (Mo.App. 1989).
     Federal court upholds timed wall climb, dummy drag and agility movements for police applicants in Texas. Test was job-related even if it had a disparate impact on female applicants. U.S. v. City of Wichita Falls, 704 F.Supp. 709 (N.D. Tex. 1988).
     Federal court upholds L.A.F.D. weight standards challenged by paramedics. United Paramedics of L.A. v. City of Los Angeles, #89-1182R, U.S. Dist. Ct. (C.D. Cal. 3/8/89).
     State failed to establish health and fitness qualifications reasonably necessary for job; age was therefore not bona fide occupational qualification. EEOC v. Mississippi, 837 F.2d 1398 (5th Cir. 1988).
     U.S. Supreme Court declines to review federal appeals court decision on physical fitness tests for firefighter positions. Berkman v. City of N.Y., 580 F.Supp. 226, 1983 U.S. Dist. Lexis 11022, 43 FEP Cases (BNA) 290 (E.D.N.Y. 1983); aff'd, 705 F.2d 584, 1983 U.S. App. Lexis 29269; 31 FEP Cases (BNA) 767 (2nd Cir. 1983); modified 812 F.2d 52, 1987 U.S. App. Lexis 2329, 43 FEP Cases (BNA) 318 (2nd Cir. 1987); certiorari denied, 108 S.Ct. 146 (1987).
     Employee may be discharged for physical inability to do work. Pierce v. Franklin Electric Co., 737 P.2d 921 (Okla. 1987).
     Loudermill also applies to a non-disciplinary medical/fitness termination. Feder v. Pope. 489 So.2d 270 (La. App. 1986).
     Fire Dept. could not impose a height requirement without establishing a BFOQ. Micu v. City of Warren, 382 N.W.2d 823 (Mich. App. 1986).
     New Jersey appellate court upholds mandatory fitness tests; not a proper subject for bargaining or arbitration. Twp. of Bridgewater v. P.B.A. Local 174, (N.J. App. 1984).
     Federal court upholds physical and training standards retroactively imposed on experienced volunteer firefighters. Alexandria Volunteer Fire Dept. Inc. v. Rule, Civil #82-0621-A, Unreported, U.S. Dist. Ct. (E.D. Va. 1982); aff'd w/o Opin., U.S. Ct. of App. (4th Cir. 1984).
     Public safety agency may require promotional candidates to meet physical fitness standards; employees not entitled to compensation to maintain their physical fitness. State FOP L-1 v. State of Ohio, 4 Ohio St. 3d 23, 446 N.E.2d 157 (1983).
     Lowering of physical agility test scores for all does not discriminate against male applicants. Patrolmen's Benevolent Assn. v. Township of East Brunswick, 180 N.J. Super. 68, 433 A.2d 813 (A.D. 1981).
     Florida arbitrator reinstates Christian Scientist who refused to participate in a blood test. City of Clearwater and Florida State L-10, F.O.P., 79-80 PBC ¶ 45,321 (Greene, 1980).
     Mandatory physical fitness program upheld by New Hampshire public employee labor relations board; not a term or condition of employment. L-1312 IAFF v. City of Dover Fire Dept., Case #F-0102:1, Decision #79021 (NH PELRB, 1979).
     Failure to take medical exam or continue to work constitutes neglect of duty; dismissal upheld. Matter of McCann, 385 A.2d 621 (Pa. Cmwlth. 1978).
     New York Appellate Court affirms right of city to order captain to submit to a physical examination. Peck v. Sartori, 399 N.Y.S.2d 291 (A.D. 1977).
     See also: Handicap Discrimination; Hearing Impairment; Sex Discrimination; Visual Acuity Standards for other cases. Vision standards are compiled under "Visual Acuity Standards." Weight standards are compiled under "Obesity.'