NCJ Number
14492
Journal
Southern California Law Review Volume: 47 Issue: 2 Dated: (FEBRUARY 1974) Pages: 585-640
Date Published
1974
Length
56 pages
Annotation
DISCUSSION OF THE LOS ANGELES POLICE DEPARTMENT'S 'UNISEX' HEIGHT MINIMUM OF 5 FEET 7 INCHES AS UNJUSTIFIED AS BUSINESS NECESSITY OR AS A BONA FIDE OCCUPATIONAL QUALIFICATION.
Abstract
AN EMPLOYMENT PRACTICE BASED ON HEIGHT IS NEUTRAL ON ITS FACE BECAUSE IT DOES NOT EXPLICITLY DISCRIMINATE AGAINST ONE SEX; THEREFORE, IT IS NOT SPECIFICALLY PROHIBITED BY TITLE VII OF THE 1964 CIVIL RIGHTS ACT. HOWEVER, IF THE NEUTRAL POLICY IS FOUND TO HAVE A 'MARKEDLY DISPROPORTIONATE IMPACT' ON ONE SEX, A PRIMA FACIE CASE OF SEX CAN BE ESTABLISHED. THE LOS ANGELES POLICE DEPARTMENT MAY BE ABLE TO ESTABLISH A VALID DEFENSE FOR THIS DISCRIMINATORY STANDARD BY SHOWING A BUSINESS NECESSITY OR BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) FOR SEX. THE BUSINESS NECESSITY DEFENSE IS AVAILBLE WHEN AN EMPLOYER MAINTAINS A NEUTRAL EMPLOYMENT POLICY WHICH IS FOUND TO HAVE A DISPROPORTIONATE IMPACT ON ONE SEX; UNDER THIS DEFENSE THE EMPLOYER CARRIES THE BURDEN OF SHOWING THAT THE EMPLOYMENT PRACTICE IS SO NECESSARY TO THE SAFE AND EFFICIENT OPERATION OF HIS BUSINESS THAT THE PRACTICE'S DISCRIMINATORY IMPACT IS JUSTIFIED. TITLE VII RECOGNIZES ANOTHER DEFENSE, THE BFOQ FOR SEX, WHICH HAS TRADITIONALLY ONLY BEEN ALLOWED IN THE CASE OF AN EMPLOYER WHOSE EMPLOYMENT PRACTICE EXPLICITLY DISCRIMINATES ON THE GROUNDS OF SEX. ALTHOUGH THE COURTS ARE SPLIT ON THE DEFINITION TO BE GIVEN TO THE BFOQ FOR SEX, IT IS SUGGESTED THAT THE MOST ACCEPTABLE DEFINITION IS THAT UNDER THIS DEFENSE THE EMPLOYER MUST PROVE THAT ALL OR SUBSTANTIALLY ALL WOMEN ARE UNABLE TO PERFORM SAFELY AND EFFICIENTLY THE DUTIES OF THE JOB. IT HAS BEEN ARGUED THAT HEIGHT STANDARDS HAVE NO PREDICTIVE VALUE IN THE POLICE RECRUITMENT PROCEDURE. EXISTING POLICE SELECTION PROCEDURES SUCH AS BACKGROUND INVESTIGATION, PSYCHOLOGICAL AND PSYCHIATRIC TESTING, INTELLIGENCE AND APTITUDE TESTS, ORAL INTERVIEW, PRE-EMPLOYMENT PHYSICAL AGILITY TEST, POLICE ACADEMY TRAINING AND A PROBATIONARY PERIOD ON THE JOB HAVE USURPED ANY FUNCTIONS THAT CONSIDERATION OF HEIGHT SERVES IN THE SELECTION OF POLICE OFFICERS. IN ADDITION, DISCRIMINATION BECAUSE OF THE SEX OF THE APPLICANT FOR THE POSITION OF POLICE PATROL OFFICER CANNOT BE JUSTIFIED UNDER TITLE VII. THE USE OF WOMEN ON UNIFORMED PATROL HAS SHOWN THAT GENERALLY THEY CAN BE AS EFFECTIVE AS MEN IN CARRYING OUT THE DUTIES OF THAT POSITION. THUS, ANY APPLICANT FOR THE POSITION OF POLICE PATROL OFFICER CANNOT BE ELIMINATED ON THE GROUNDS OF SEX OR HEIGHT, BUT MUST BE INDIVIDUALLY TESTED BY JOB-RELATED EMPLOYMENT STANDARDS. THE EMPIRICAL EVIDENCE AND LEGAL ARGUMENT PRESENTED IN THIS NOTE SUGGEST, THEREFORE, THAT THE UNISEX HEIGHT MINIMUM IS A VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964. (AUTHOR ABSTRACT)