                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-1999

Lanning v. SEPTA
Precedential or Non-Precedential:

Docket 98-1644,98-1755




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"Lanning v. SEPTA" (1999). 1999 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/177


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed June 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-1644 and 98-1755

CATHERINE NATSU LANNING; ALTOVISE LOVE;
BELINDA KELLY DODSON; DENISE DOUGHERTY;
LYNNE ZIRILLI

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (SEPTA);
(D.C. Civil No. 97-cv-00593)

UNITED STATES OF AMERICA

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY
(D.C. Civil No. 97-cv-01161)
Catherine Natsu Lanning, Altovise Love, Belinda Kelly
Dodson, Denise Doughtery and Lynne Zirilli,

       Appellants in No. 98-1644

United States of America,
       Appellant in No. 98-1755

Appeal from the   United States District Court
for the Eastern   District of Pennsylvania
(D.C. Civ. Nos.   97-cv-00593; 97-cv-01161)
District Judge:   Honorable Clarence C. Newcomer

Argued: April 28, 1999

Before: MANSMANN, WEIS and GIBSON,*
Circuit Judges.
_________________________________________________________________

*Honorable John R. Gibson, of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
(Filed June 29, 1999)

       Lisa M. Rau, Esquire (ARGUED)
       Jules Epstein, Esquire
       Kairys, Rudovsky, Epstein,
        Messing & Rau
       924 Cherry Street, Suite 500
       Philadelphia, PA 19107

       Michael Churchill, Esquire
       Public Interest Law Center of
        Philadelphia
       125 South 9th Street
       Suite 700
       Philadelphia, PA 19107

        Counsel for Appellants: Catherine
       Natsu Lanning; Altovise Love;
       Belinda Kelly Dodson; Denise
       Dougherty; Lynne Zirilli in
       No. 98-1644

       Bill Lann Lee, Esquire
        Acting Assistant Attorney General
       Dennis J. Dimsey, Esquire
       Leslie A. Simon, Esquire
       Robert S. Libman, Esquire
        (ARGUED)
       United States Department of Justice
       Civil Rights Division
       P.O. Box 66078
       Washington, DC 20035-6078

        Counsel for Appellant in
       No. 98-1644

       Saul H. Krenzel, Esquire (ARGUED)
       Saul H. Krenzel & Associates
       The Robinson Building, Suite 800
       42 South 15th Street
       Philadelphia, PA 19102

        Counsel for Appellee -- SEPTA

                               2
OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, we must determine the appropriate legal
standard to apply when evaluating an employer's business
justification in an action challenging an employer's cutoff
score on an employment screening exam as discriminatory
under a disparate impact theory of liability. We hold today
that under the Civil Rights Act of 1991, a discriminatory

cutoff score on an entry level employment examination
must be shown to measure the minimum qualifications
necessary for successful performance of the job in question
in order to survive a disparate impact challenge. Because
we find that the District Court did not apply this standard
in evaluating the employer's business justification for its
discriminatory cutoff score in this case, we will reverse the
District Court's judgment and remand for reconsideration
under this standard. In light of our decision to remand on
this basis, we need not reach the parties' other assertions
of error.

I.

This appeal comes to us from a judgment entered by the
District Court in favor of the Southeastern Pennsylvania
Transportation Authority ("SEPTA") after a twelve day bench
trial in January of 1998. Although the parties generally do
not dispute the facts relevant to this appeal, to the extent
there are favorable inferences to be drawn, we must draw
them in favor of SEPTA as the prevailing party. In addition,

because we must not disturb the factual findings of the
District Court unless clearly erroneous, much of the
following background is adopted from the facts as found by
the District Court in its extensive memorandum opinion.
See Lanning v. Southeastern Pennsylvania Transp. Auth.,
1998 WL 341605, at *1-*52 (E.D. Pa. June 25, 1998).

                                3
A.

SEPTA is a regional mass transit authority that operates
principally in Philadelphia, Pennsylvania. In 1989, in
response to a perceived need to upgrade the quality of its
transit police force, SEPTA initiated an extensive program
designed to improve the department. As part of this
program, SEPTA dedicated its transit officers primarily to
patrolling the subways and limited their responsibilities to
serve as guards at other SEPTA property. In addition,
SEPTA increased the number of its officers from 96 to 200
and introduced a "zone concept" for the areas they patrol.1
SEPTA also began to consider methods by which it might
upgrade the physical fitness level of its police officers.

In 1991, SEPTA hired Dr. Paul Davis to develop an
appropriate physical fitness test for its police officers.2 Dr.
Davis initially met with SEPTA officials in order to ascertain
SEPTA's objectives. Dr. Davis determined that SEPTA was
interested in enhancing the level of fitness, physical vigor
and general productivity of its police force. Once Dr. Davis
had determined SEPTA's objectives, he went on a ride-along
with SEPTA transit police and, over the course of two days
and approximately twenty hours, rode the SEPTA trains in
order to obtain a perspective on the expectations of SEPTA
transit officers.

Dr. Davis next conducted a study with twenty
experienced SEPTA officers, designated "subject matter
experts" (SMEs), in an effort to determine what physical
abilities are required to perform the job of SEPTA transit
officer. From the responses Dr. Davis received in this study,
he determined that running, jogging, and walking were
_________________________________________________________________

1. Under the zone concept, SEPTA designated eight separate zones
covering the subway system. In a typical zone, one Lieutenant is
assigned to command the zone. Two Sergeants are also assigned to the
zone. Three shifts of officers per day tour the zone. Beats within the
zones are assigned to the individual officers. Beats are reassigned
periodically to familiarize the officers with the entire zone. Officers
patrol
their beats alone and on foot.

2. Dr. Davis is an expert exercise physiologist who has extensive
experience in designing physical fitness employment tests for various law
enforcement agencies.

                               4
important SEPTA transit officer tasks and that SEPTA
officers were expected to jog almost on a daily basis.

Dr. Davis then asked the SMEs to determine what level
of physical exertion was necessary to perform these tasks.
The SMEs estimated that it was reasonable to expect them
to run one mile in full gear in 11.78 minutes. Dr. Davis
rejected this estimate as too low based upon his
determination that any individual could meet this
requirement. Ultimately, Dr. Davis recommended a 1.5 mile
run within 12 minutes. Dr. Davis explained that completion
of this run would require that an officer possess an aerobic
capacity of 42.5 mL/kg/min, the aerobic capacity that Dr.
Davis determined would be necessary to perform the job of
SEPTA transit officer.3

Dr. Davis recommended that SEPTA use the 1.5 mile run
as an applicant screening test. Dr. Davis understood that
SEPTA officers would not be required to run 1.5 miles
within 12 minutes in the course of their duties, but he
nevertheless recommended this test as an accurate
measure of the aerobic capacity necessary to perform the
job of SEPTA transit police officer. Based upon Dr. Davis'
recommendation, SEPTA adopted a physical fitness
screening test for its applicants which included a 1.5 mile
run within 12 minutes. Beginning in 1991, the 1.5 mile run
was administered as the first component of the physical
fitness test; if an applicant failed to run 1.5 miles in 12
minutes, the applicant would be disqualified from
employment as a SEPTA transit officer.

It is undisputed that for the years 1991, 1993, and 1996,
an average of only 12% of women applicants passed
SEPTA's 1.5 mile run in comparison to the almost 60% of
male applicants who passed.4 For the years 1993 and 1996,
the time period in question in this litigation, the pass rate
_________________________________________________________________

3. Dr. Davis initially decided that an aerobic capacity of 50 mL/kg/min
was necessary to perform the job of SEPTA transit police officer. After
determining that institution of such a high standard would have a
draconian effect on women applicants, however, Dr. Davis decided that
the goals of SEPTA could be satisfied by using a 42.5 mL/kg/min
standard.
4. SEPTA contends that it did not seek applicants in 1992. Credited
testimony was offered, however, that each of the six or seven women who
took the 1.5 mile test in 1992 failed. Relying on this testimony, the
District Court found that the disparate impact on women was slightly
more pronounced than the 1991, 1993, and 1996 figures reflect. See
Lanning, 1998 WL 341605 at *28.

                               5
for women was 6.7% compared to a 55.6% pass rate for
men. In addition, research studies confirm that a cutoff of
12 minutes on a 1.5 mile run will have a disparately
adverse impact on women.5 SEPTA concedes that its 1.5
mile run has a disparate impact on women.

In conjunction with the implementation of its physical
fitness screening test, SEPTA also began testing incumbent
officers for aerobic capacity in 1991. SEPTA policy requires
any officer who fails any portion of the incumbentfitness
test to retest on the failed element within three months. For
each portion of the physical fitness test that an incumbent
officer fails, an interim goal is set for that officer.

SEPTA initially disciplined those incumbent officers who
failed the fitness test. Due to protests by the incumbent
officers' union, however, SEPTA discontinued its discipline
policy and instead implemented an incentive program that
rewarded incumbent officers for passing their interim
fitness goals.

According to SEPTA's internal documents, significant
percentages of incumbent officers of all ranks have failed
SEPTA's physical fitness test.6 By 1996, however, 86% of
incumbent officers reached SEPTA's physical fitness
standards. SEPTA has never taken any steps to determine
whether incumbent officers who have failed the physical
_________________________________________________________________

5. For example, one proffered study showed that approximately 47% of
men between the ages of 20 to 29 can perform a 1.5 mile run in 12
minutes where only 12% of women in the same age category can achieve
this time. As noted by the District Court, testimony was offered that this
study may not be entirely reliable because the women who participated
in the study were predominately white women of higher socioeconomic
status. Other research studies, however, were offered which show that
men generally have a higher aerobic rate than women due to
physiological differences between the sexes.

6. The District Court pointed to one document, for example, indicating
that between July 1, 1994 and August 22, 1995, the percentage of
uniformed personnel who failed the fitness test was as follows: a) Age
group 20-30: 10% of all officers; b) Age group 30-40: 30% of all officers
and 12% of all supervisors; c) Age group 40-50: 45% of all officers and
52% of all supervisors; d) Age group 50-60: 55% of all officers and 40%
of all supervisors. See Lanning, 1998 WL 341605 at *31.

                               6
fitness test have adversely affected SEPTA's ability to carry
out its mission.

SEPTA has promoted incumbent officers who have failed
some or all of the components of the physical fitness test.
SEPTA has also given special recognition, commendations,
and satisfactory performance evaluations to incumbent
officers who have failed the physical fitness test. SEPTA has
never disciplined, terminated, removed, reassigned,
suspended or demoted any transit officer for failing to
perform the physical requirements of the job.

In addition, due to a clerical error, SEPTA hired a female
officer in 1991 who failed the 1.5 mile run. This officer has
subsequently been "decorated" by SEPTA and has been
nominated repeatedly for awards such as Officer of the Year
and Officer of the Quarter. SEPTA has commended her for
her outstanding performance as a police officer and has
chosen her to serve as one of SEPTA's two defensive tactics
instructors.

SEPTA employs an extremely low number of women in its
transit police force. The District Court found that, as of
July 1997, SEPTA employed only 16 women in its 234
member police force. Only two of these women hold ranks
higher than that of patrol officer. See Lanning, 1998 WL
341605 at *27.

B.

On January 28, 1997, after satisfying all administrative
prerequisites, five women who failed SEPTA's 1.5 mile run
brought a Title VII class action against SEPTA on behalf of
all 1993 female applicants, 1996 female applicants and
future female applicants for employment as SEPTA police
officers who have been or will be denied employment by
reason of their inability to meet the physical entrance
requirement of running 1.5 miles in 12 minutes or less. On
February 18, 1997, the Department of Justice, after
conducting the appropriate investigation of SEPTA's
employment practices and meeting all conditions precedent
under Title VII, also filed suit on behalf of the United States
challenging SEPTA's entire physical fitness test, including
the 1.5 mile run. The District Court properly exercised

                                7
jurisdiction over these Title VII actions challenging SEPTA's
hiring practices pursuant to 28 U.S.C. S 1331. On April 21,
1997, the District Court consolidated the two actions for all
purposes up to and including trial.

After litigation commenced, SEPTA hired expert
statisticians to submit reports examining the statistical
relationship between the aerobic capacity of SEPTA's
officers and their number of arrests, "arrest rates"7 and
number of commendations. In these reports, the
statisticians concluded that there was a statistically
significant correlation between high aerobic capacity and
arrests, arrest rates and commendations. In addition, one
expert prepared a report that estimated that 51.9% of the
persons arrested for serious crimes between 1991 and 1996
had an aerobic capacity of 48 mL/kg/min and 27% of those
arrested had an aerobic capacity of less than 42 mL/kg/min.8
Based upon these reports, the District Court held that
SEPTA established that its aerobic capacity requirement is
job related and consistent with business necessity. See
Lanning, 1998 WL 341605 at *35.

The District Court also found support for this conclusion
in an expert report submitted on behalf of SEPTA by Dr.
Robert Moffatt. Dr. Moffatt simulated a training course and
concluded that officers with aerobic capacities of 45
mL/kg/min or better had a 7-8% decrement in their ability
to perform physical activities after a run of approximately
three minutes; officers with an aerobic capacity of less than
45 mL/kg/min exhibited a 30% decrement in physical
ability after the same run. The District Court found that Dr.
Moffatt's study demonstrates "the manifest relationship of
aerobic capacity to the critical and important duties of a
SEPTA transit police officer . . . ." Id. at *68.
_________________________________________________________________

7. "Arrest rates" were tabulated by expressing the number of arrests
made by an officer as a percentage of the number of incident reports
involving that officer. See App. at 3040-41 (Siskin Expert Report).

8. The category of "serious crimes" includes homicide, rape, robbery,
aggravated assault, burglary, theft, and auto theft. This category of
arrests accounts for approximately ten percent of all reported incidents
and seven percent of all reported arrests. See App. at 3040. (Siskin
Expert Report).

                               8
The District Court entered judgment in favor of SEPTA on
all claims. Both the individual plaintiffs and the United
States have taken appeals from the District Court'sfinal
judgment, over which we have jurisdiction pursuant to 28
U.S.C. S 1291. On appeal, the individual plaintiffs assert
that the District Court applied incorrect legal standards in
evaluating SEPTA's business necessity defense and that the
District Court made erroneous findings of fact in
determining that SEPTA's 1.5 mile run does not violate Title
VII. Although the United States initially challenged SEPTA's
implementation of its entire physical fitness test, on appeal
the United States joins the individual plaintiffs in asserting
error solely with respect to the District Court's
determination that SEPTA's 1.5 mile run is not violative of
Title VII. Because the issue of whether the District Court
applied the correct legal standard is one of law, our review
is plenary.

II.

Under Title VII's disparate impact theory of liability,
plaintiffs establish a prima facie case of disparate impact by
demonstrating that application of a facially neutral
standard has resulted in a significantly discriminatory
hiring pattern. See Dothard v. Rawlinson, 433 U.S. 321,
329 (1977). Once the plaintiffs have established a prima
facie case, the burden shifts to the employer to show that
the employment practice is "job related for the position in
question and consistent with business necessity . . . ." 42
U.S.C. S 2000e-2k. Should the employer meet this burden,
the plaintiffs may still prevail if they can show that an
alternative employment practice has a less disparate impact
and would also serve the employer's legitimate business
interest. See Albemarle Paper Co. v. Moody, 422 U.S. 405,
425 (1975).

Because SEPTA concedes that its 1.5 mile run has a
disparate impact on women, the first prong of the disparate
impact analysis is not at issue in this appeal.9 Rather, this
_________________________________________________________________

9. On appeal, SEPTA offered evidence to establish that the individual
female applicants who failed SEPTA's 1.5 mile run demonstrated a
cavalier attitude in preparing for and taking the test. As aptly noted by
plaintiffs' counsel at oral argument, this evidence has no bearing upon
our analysis in this appeal because SEPTA has conceded that its test
has a severe disparate impact on women.

                               9
appeal focuses our attention on the proper standard for
evaluating whether SEPTA's 1.5 mile run is "job related for
the position in question and consistent with business
necessity" under the Civil Rights Act of 1991. Because the
Act instructs that this standard incorporates only selected
segments of prior Supreme Court jurisprudence on the
business necessity doctrine, we examine the history of this
doctrine in order to resolve this threshold issue.

A.

The disparate impact theory of discrimination under Title
VII was judicially created in the seminal case of Griggs v.
Duke Power Co., 401 U.S. 424 (1971). In embracing
disparate impact, the Court recognized that Title VII was
meant not only to proscribe overt discrimination, but also
to prohibit "practices that are fair in form, but
discriminatory in operation." Griggs, 401 U.S. at 431. The
Court made clear that what is required by Title VII is "the
removal of artificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible
classification." Id. Accordingly, the Court announced that in
evaluating practices fair in form but discriminatory in
operation, "[t]he touchstone is business necessity." Id.

The Court, however, was unclear in articulating what an
employer must show to demonstrate business necessity.
The Court couched the employer's burden in terms of
showing that its practice is "related to job performance";
"bear[s] a demonstrable relationship to successful
performance of the jobs for which it was used"; has "a
manifest relationship to the employment in question"; and
is "demonstrably a reasonable measure of job performance."
Id. at 431, 432, 436. In applying this standard, however,
the Court rejected the employer's justification in Griggs that
its standardized intelligence tests and diploma
requirements generally would improve the overall quality of
the work force in its power plant. The Court held that,
although these requirements may be useful, they could not
be used to exclude disproportionately a protected group
when the employer failed to show that they do not test an

                               10
applicant's ability to perform the job in question. Id. at 431-
33.

The Court next spoke to the issue of business necessity
in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). In
Albemarle, an employer sought to justify the use of verbal
exam and high school diploma requirements in determining
whether to promote employees to more skilled positions in
its paper mill. Albemarle, 422 U.S. at 408-11. In
preparation for trial, the employer hired an industrial
psychologist to complete validation studies showing that
the tests were job related because they had a statistically
significant correlation with supervisorial ratings in several
groups of the jobs in question. Id. at 429-30. The Court,
nevertheless, rejected the employer's contention that its
requirements were job related.

The Court held that "discriminatory tests are
impermissible unless shown, by professionally acceptable
methods, to be `predicative of or significantly correlated
with important elements of work behavior which comprise
or are relevant to the job or jobs for which candidates are
being evaluated.' " Id. at 431 (quoting 29 CFR S 1607.4(c)).
In so holding, the Court noted that the Equal Employment
Opportunity Commission (EEOC) Guidelines for
professional standards of test validation are entitled to
great deference in determining whether an employer has
demonstrated that its requirements are job related. Id. at
430-31. The Court rejected the employer's validation
studies as inadequate in several respects under the EEOC
Guidelines. For example, the Court rejected the studies
because they focused on the most qualified employees near
the top of the line of progression, stating:

       The fact that the best of those employees working near
       the top of a line of progression score well on a test does
       not necessarily mean that that test, or some particular
       cutoff score on the test, is a permissible measure of the
       minimal qualifications of new workers entering lower
       level jobs.

Id. at 434. The Court accordingly held that consideration
must be given to the possible use of testing as a promotion
device rather than as a screen for entry into lower level

                               11
jobs. Id. Due to several inadequacies of the employer's
validation studies, the Court held that the employer had
failed to show that its requirements were job related to the
position in question. Id. at 435-36.

The next Title VII case to raise the business necessity
issue for the Court's consideration was Dothard v.
Rawlinson, 433 U.S. 321 (1977).10 In Dothard, female
applicants challenged a prison's minimum height and
weight requirements for its prison guard positions as
violative of Title VII. On the issue of business necessity, the
Court made clear that "a discriminatory employment
practice must be shown to be necessary to safe and
efficient job performance to survive a Title VII challenge."
Dothard, 433 U.S. at 332 n.14. The Court rejected the
prison's assertion that height and weight requirements have
a relationship to the unspecified amount of strength
essential to effective job performance, holding that if
strength is a bona fide job related quality, the prison could
test for it directly by adopting and validating a fairly
administered strength test. Id. at 331-32.

The Court's next definitive statement on the business
necessity doctrine is found in Wards Cove Packing Co., Inc.
v. Atonio, 490 U.S. 642 (1989), where a majority of the
Court deviated from its previous business necessity
jurisprudence in adopting a more liberal test for business
necessity.11 According to the Court:
_________________________________________________________________

10. Prior to Dothard, the Court included some language related to the
business necessity doctrine in Washington v. Davis, 426 U.S. 229 (1976),
an equal protection case. Because Washington is not a Title VII case,
however, we cannot treat the language in Washington as reflective of the
pre-Wards Cove business necessity doctrine applicable to Title VII cases.

11. Two cases prior to Wards Cove forecast some of the changes to come.
In New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979), the Court
disposed of a Title VII case by holding that the plaintiffs failed to
establish a prima facie case of disparate impact. The Court, however,
commented on the business necessity doctrine in dicta. In a footnote,
the Court stated that even if a prima facie case had been established,
the employer would have shown business necessity by establishing that
its practice significantly serves its legitimate business goals of safety
and
efficiency. Beazer, 440 U.S. at 587 n.31. Similarly, a plurality opinion
in

                               12
       [T]he dispositive issue is whether a challenged practice
       serves, in a significant way, the legitimate employment
       goals of the employer. The touchstone of this inquiry is
       a reasoned review of the employer's justification for his
       use of the challenged practice. A mere insubstantial
       justification in this regard will not suffice, because
       such a low standard of review would permit
       discrimination to be practiced through the use of
       spurious, seemingly neutral employment practices. At
       the same time, though, there is no requirement that
       the challenged practice be "essential" or
       "indispensable" to the employer's business for it to
       pass muster . . . .

Wards Cove, 490 U.S. at 659 (citations omitted). In
addition, the Court made clear that at the business
necessity stage of Title VII litigation, the employer bears
only the burden of production; the burden of persuasion
remains on the disparate impact plaintiff at all times. Id. As
we have previously recognized, the Wards Cove standard
may reasonably be viewed as a departure from the more
stringent business necessity standard under Griggs and its
progeny. See Newark Branch, N.A.A.C.P. v. Town of
Harrison, New Jersey, 940 F.2d 792, 803 (3d Cir.
1991)(noting that Wards Cove "arguably diluted the
business necessity burden" under Griggs).

B.

In response to Wards Cove, Congress enacted the Civil
Rights Act of 1991. One of the primary purposes of the Act
was "to codify the concepts of `business necessity' and `job
related' enunciated by the Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), and in the other Supreme
_________________________________________________________________

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), suggested that
employers could meet their burden of establishing business necessity
simply by advancing a legitimate business reason for the practice in
question. Watson, 487 U.S. at 998. While the language in these cases
clearly foreshadowed the Court's holding in Wards Cove, this language
had never been embraced by a majority of the Court as the binding
standard for business necessity prior to Wards Cove.

                               13
Court decisions prior to Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989)." Civil Rights Act of 1991, Pub L. No.
102-166, S 3, 105 Stat. 1071, 1071 (1992). As part of this
codification of Griggs, the Act made clear that both the
burden of production and the burden of persuasion in
establishing business necessity rest with the employer. See
42 U.S.C. S 2000e-2(k).

In addition, the Act codified the business necessity
doctrine by using the following language:

        An unlawful employment practice based on disparate
       impact is established under this subchapter only if--

        (i) a complaining party demonstrates that a
       respondent uses a particular employment practice that
       causes a disparate impact on the basis of race, color,
       religion, sex, or national origin and the respondent fails
       to demonstrate that the challenged practice is job
       related for the position in question and consistent with
       business necessity; or

        (ii) the complaining party makes the demonstration
       described in subparagraph (C) with respect to an
       alternative employment practice and the respondent
       refuses to adopt such alternative employment practice.

42 U.S.C. S 2000e-2(k)(1)(A)(emphasis added). The Act
further instructs that in interpreting its business necessity
language, "[n]o statements other than the interpretive
memorandum . . . shall be considered legislative history of,
or relied upon in any way as legislative history . .. ." Civil
Rights Act of 1991, Pub L. No. 102-166, S 105(b), 105 Stat.
1071, 1075 (1992). The interpretive memorandum
referenced in this portion of the Act states in relevant part:

       The terms "business necessity" and "job related" are
       intended to reflect the concepts enunciated by the
       Supreme Court in Griggs v. Duke Power Co., 401 U.S.
       424 (1971), and in the other Supreme Court decisions
       prior to Wards Cove Packing Co. v. Atonio, 490 U.S.
       642 (1989).

137 Cong. Rec. 28,680 (1991). After the passage of the Act,
proponents of both a strict test for business necessity and

                               14
a more liberal requirement claimed victory in the standard
adopted by the Act.12

III.

The Supreme Court has yet to interpret the "job related
for the position in question and consistent with business
necessity" standard adopted by the Act. In addition, our
sister courts of appeals that have applied the Act's
standard to a Title VII challenge have done so with little
analysis. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1117-18 (11th Cir. 1993)(noting that Civil Rights Act
of 1991 statutorily reversed Wards Cove but ruling in favor
of employer because practice was demonstrably necessary
to meet an "important business goal"); Bradley v. Pizzaco of
Nebraska, Inc., 7 F.3d 795, 797-98 (8th Cir. 1993)(noting
that Griggs standard was reinstated by the Act and holding
that employer failed to meet Griggs standard).

Because the Act proscribes resort to legislative history
with the exception of one short interpretive memorandum
endorsing selective caselaw, our starting point in
interpreting the Act's business necessity language must be
that interpretive memorandum. The memorandum makes
clear that Congress intended to endorse the business
necessity standard enunciated in Griggs and not the Wards
Cove interpretation of that standard. By Congress'
distinguishing between Griggs and Wards Cove, we must
conclude that Congress viewed Wards Cove as a significant
departure from Griggs. Accordingly, because the Act clearly
chooses Griggs over Wards Cove, the Court's interpretation
_________________________________________________________________

12. See Andrew C. Spiropoulos, Defining the Business Necessity Defense
to the Disparate Impact Cause of Action: Finding the Golden Mean, 74
N.C. L. Rev. 1479, 1516-20 (1996)(outlining the respective positions of
both sides to the debate); compare also Michael Carvin, Disparate Impact
Claims Under the New Title VII, 68 Notre Dame L. Rev. 1153
(1993)(arguing that Wards Cove is still good law after Civil Rights Act of
1991); with Susan S. Grover, The Business Necessity Defense in
Disparate Impact Discrimination Cases, 30 Ga. L. Rev. 387 (1996)(arguing
for a strict business necessity standard under the Act); Note, The Civil
Rights Act of 1991: The Business Necessity Standard , 106 Harv. L. Rev.
896 (1993)(asserting that Wards Cove does not survive the Act).

                                15
of the business necessity standard in Wards Cove   does not
survive the Act.13

We turn now to articulate the standard for business
necessity - one most consistent with Griggs and its pre-
Wards Cove progeny. The laudable mission begun by the
Court in Griggs was the eradication of discrimination
through the application of practices fair in form but
discriminatory in practice by eliminating unnecessary
barriers to employment opportunities. In the context of a
hiring exam with a cutoff score shown to have a
discriminatory effect, the standard that best effectuates this
mission is implicit in the Court's application of the
business necessity doctrine to the employer in Griggs, i.e.,
that a discriminatory cutoff score is impermissible unless
shown to measure the minimum qualifications necessary
for successful performance of the job in question. Only this
standard can effectuate the mission begun by the Court in
Griggs; only by requiring employers to demonstrate that
their discriminatory cutoff score measures the minimum
qualifications necessary for successful performance of the
job in question can we be certain to eliminate the use of
excessive cutoff scores that have a disparate impact on
minorities as a method of imposing unnecessary barriers to
employment opportunities.

The evolution of the Court's articulation of the business
necessity doctrine in both Albemarle and Dothard reinforces
_________________________________________________________________

13. We are cognizant that a contrary argument has been advanced in
which it is asserted that Wards Cove remains the controlling standard.
See Carvin, supra note 12, at 1157-64. Pursuant to the argument, the
business necessity standard announced in Wards Cove simply clarified
Griggs and therefore is not inconsistent with the Act's command to apply
the standard enunciated in Griggs. In addition, it is asserted that due to
the legislative history of the Act, it would be improper to apply a strict
business necessity standard. This argument, however, ignores two
important aspects of the Act which constrain our interpretation of the
standard adopted. First, the interpretive memorandum's distinction
between Griggs and Wards Cove casts significant doubt on the assertion
that Congress read Wards Cove as simply a clarification of Griggs.
Second, the Act precludes us from considering the legislative history
upon which this argument relies for support. Accordingly, we find this
argument to be devoid of merit.

                               16
the conclusion that this standard is both implicit in Griggs
and central to its mission. In Albemarle, the Court
explained that discriminatory tests must be validated to
show that they are "predictive of . . . important elements of
work behavior which comprise . . . the job . . . for which
candidates are being evaluated" and that the scores of the
higher level employees do not necessarily validate a cutoff
score for the minimum qualifications to perform the job at
an entry level. Albemarle, 422 U.S. at 431, 434. This is
simply another way of saying that discriminatory cutoff
scores must be validated to show they measure the
minimum qualifications necessary for successful
performance of the job. Similarly, in Dothard, the Court
made clear that "a discriminatory employment practice,"
such as a discriminatory cutoff score on an entry level
exam, "must be shown to be necessary to safe and efficient
job performance to survive a Title VII challenge." Dothard,
433 U.S. at 332 n.14.

Taken together, Griggs, Albemarle and Dothard teach that
in order to show the business necessity of a discriminatory
cutoff score an employer must demonstrate that its cutoff
measures the minimum qualifications necessary for
successful performance of the job in question. Furthermore,
because the Act instructs us to interpret its business
necessity language in conformance with Griggs and its pre-
Wards Cove progeny, we must conclude that the Act's
business necessity language incorporates this standard.

Our conclusion that the Act incorporates this standard is
further supported by the business necessity language
adopted by the Act. Congress chose the terms "job related
for the position in question" and "consistent with business
necessity." Judicial application of a standard focusing
solely on whether the qualities measured by an entry level
exam bear some relationship to the job in question would
impermissibly write out the business necessity prong of the
Act's chosen standard. With respect to a discriminatory
cutoff score, the business necessity prong must be read to
demand an inquiry into whether the score reflects the
minimum qualifications necessary to perform successfully
the job in question. See also EEOC Guidelines, 29 C.F.R.
S1607.5 (H) (noting that cutoff scores should "be set so as

                               17
to be reasonable and consistent with normal expectations
of acceptable proficiency within the work force.").

In addition, Congress' decision to emphasize the
importance of the policies underlying the disparate impact
theory of discrimination through its codification supports
application of this standard to discriminatory cutoff scores.
The disparate impact theory of discrimination combats not
intentional, obvious discriminatory policies, but a type of
covert discrimination in which facially neutral practices are
employed to exclude, unnecessarily and disparately,
protected groups from employment opportunities. Inherent
in the adoption of this theory of discrimination is the
recognition that an employer's job requirements may
incorporate societal standards based not upon necessity
but rather upon historical, discriminatory biases. 14 A
business necessity standard that wholly defers to an
employer's judgment as to what is desirable in an employee
therefore is completely inadequate in combating covert
discrimination based upon societal prejudices. Only a
business necessity doctrine that examines discriminatory
cutoff scores in light of the minimum qualifications that are
necessary to perform the job in question successfully can
address adequately this subtle form of discrimination.15
_________________________________________________________________

14. For an interesting discussion on male-oriented biases in the labor
market see Maxine N. Eichner, Getting Women Work That Isn't Women's
Work: Challenging Gender Biases in the Workplace Under Title VII, 97
Yale L.J. 1397 (1988). See also, Hurley v. The Atlantic City Police Dept.,
___ F.3d. ___, ___ n.5, 1999 WL 150301 (3d Cir. 1999)(noting egregious
sexual harassment to which a female police officer was subjected by her
male colleagues); Mazus v. Department of Transp., Com. of Pa., 629 F.2d
870, 876 (3d Cir. 1980)(Sloviter, J., dissenting)(noting allegations
demonstrating prevalent male attitude that construction work is not the
"type of work" women should perform).

15. We need not be concerned that implementation of this standard will
result in forcing employers to adopt quotas, a result that would be
inconsistent with the mandates of Title VII. If an employer can
demonstrate that its discriminatory cutoff score reflects the minimum
qualifications necessary for successful job performance, it will be able
to
continue to use it. If not, the employer must abandon that cutoff score,
but is free to develop either a non-discriminatory practice which furthers
its goals, or an equally discriminatory practice that can meet this

                               18
Accordingly, we hold that the business necessity
standard adopted by the Act must be interpreted in
accordance with the standards articulated by the Supreme
Court in Griggs and its pre-Wards Cove progeny which
demand that a discriminatory cutoff score be shown to
measure the minimum qualifications necessary for the
successful performance of the job in question in order to
survive a disparate impact challenge.16
_________________________________________________________________

standard. Nothing in the Griggs business necessity standard requires
employers to hire employees in numbers to reflect the ethnic, racial or
gender make-up of the community.

The following example based upon the facts of this case illustrates this
point. Assuming that SEPTA's 1.5 mile run has a disparate impact on
women and that SEPTA can not show that the 12 minute cutoff
measures the minimum aerobic capacity necessary to be a successful
transit officer, it does not follow that SEPTA would then be required to
hire women in equal proportion to men. Several options would be
available to SEPTA. For example, SEPTA could: 1) abandon the test as
a hiring requirement but maintain an incentive program to encourage an
increase in the officers' aerobic capacities; 2) validate a cutoff score
for
aerobic capacity that measures the minimum capacity necessary to
successfully perform the job and maintain incentive programs to achieve
even higher aerobic levels; or 3) institute a non-discriminatory test for
excessive levels of aerobic capacity such as a test that would exclude
80% of men as well as 80% of women through separate aerobic capacity
cutoffs for the different sexes. Each of these options would help SEPTA
achieve its stated goal of increasing aerobic capacity without running
afoul of Title VII and none of these options require hiring by quota.

16. Relying upon Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th
Cir.
1972), and like cases from our sister courts of appeals, the dissent
asserts that this standard should not apply to SEPTA because the job of
SEPTA transit officer implicates issues of public safety. Under the Act,
however, our interpretation of the business necessity language is limited
to "the concepts enunciated by the Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), and in the other Supreme Court
decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642
(1989)." See 137 Cong. Rec. 28,680 (1991)(emphasis added). Because the
Supreme Court never adopted the holding of Spurlock prior to Wards
Cove, its is clear that, under the Act, we are not to consider Spurlock as
authoritative. Furthermore, if Congress had intended to endorse the
holding of Spurlock, it could have done so affirmatively. Accordingly,
because the Act limits our interpretation to Supreme Court

                               19
IV.

Although the District Court purported to apply the Act's
"job related to the position in question and consistent with
business necessity" standard to SEPTA's cutoff score on its
1.5 mile run, it is clear from the District Court's
memorandum opinion that it did not apply the standard we
have found to be implicit in Griggs and incorporated by the
Act. The District Court rejected the formulation of the
Griggs standard found in Dothard, characterizing it as
dicta, and relied instead upon language found in New York
City Transit Auth. v. Beazer, 440 U.S. 568 (1979). As our
prior discussion makes clear,17 the Beazer language is dicta
and the Dothard standard is binding under the Act.
Moreover, the Beazer dicta upon which the District Court
relied mirrors the standard adopted by Wards Cove.
Compare Lanning, 1998 WL 341605 at *54 (noting that in
Beazer, the Court "implicitly approves employment
practices that significantly serve, but are neither required
by nor necessary to, the employer's legitimate business
interests") with Wards Cove, 490 U.S. at 659 (stating that
_________________________________________________________________

jurisprudence and does not otherwise endorse Spurlock, we are not at
liberty to adopt the holding of Spurlock at this juncture. Moreover, to
the
extent that Spurlock and other cases from our sister courts of appeals
can be read to suggest that minimum qualifications do not apply to
certain types of employment, these cases are inconsistent with the
teachings of Griggs and are accordingly uninformative under the Act.

Furthermore, to the limited extent that the Supreme Court's pre-Wards
Cove jurisprudence instructs that public safety is a legitimate
consideration, application of the business necessity standard to SEPTA
is consistent with that jurisprudence because the standard itself takes
public safety into consideration. If, for example, SEPTA can show on
remand that the inability of a SEPTA transit officer to meet a certain
aerobic level would significantly jeopardize public safety, this showing
would be relevant to determine if that level is necessary for the
successful performance of the job. Clearly a SEPTA officer who poses a
significant risk to public safety could not be considered to be performing
his job successfully. We are accordingly confident that application of the
business necessity standard to SEPTA is fully consistent with the
Supreme Court's pre-Wards Cove jurisprudence as required by the Act.

17. See supra note 11.

                               20
standard is "whether a challenged practice serves, in a
significant way, the legitimate employment goals of the
employer" and noting that there is no requirement that the
practice be essential). As we previously stated, the Wards
Cove standard does not survive the Act.

The District Court's application of its understanding of
business necessity to SEPTA's business justification further
illustrates that the District Court did not apply the correct
legal standard. As an initial matter, the District Court
seemed to conclude that Dr. Davis' expertise alone is
sufficient to justify the 42.5 mL/kg/min aerobic capacity
cutoff measured by the 1.5 mile run.18 This conclusion
disregards the teachings of Griggs, Albemarle and Dothard
in which the Court made clear that judgment alone is
_________________________________________________________________

18. While relying predominately upon Dr. Davis' expertise, the District
Court does point to a study which Dr. Davis completed for Anne Arundel
County, Maryland in which he concluded that a 42.5 mL/kg/min aerobic
capacity predicted success as an Anne Arundel County police officer.
Absent a finding that the work of an Anne Arundel County police officer
is comparable to SEPTA transit officer work, afinding the District Court
did not make, reliance on this validation study is misplaced. See 29
C.F.R. S 1607.7 (B)(2); see also 29 C.F.R. S 1607.7(B)(3)(explaining that
validation studies created for other employers must also include a study
of "test fairness"). Furthermore, it is unclear from Dr. Davis' report
whether the Anne Arundel study's 42.5 mL/kg/min cutoff actually
measures for qualities significant to SEPTA transit police performance.
Compare App. at 3134 (Davis Report) (noting that 42.5 mL/kg/min level
for Anne Arundel study is significant for carrying an unspecified amount
of weight and generally effecting arrests) with App. at 3132 (Davis
Report) (stating "[t]ransit police officers are more likely to have
incidents
come to them, as opposed to responding to the scene of an event. By
mission, the presence of the officer is that of a deterrent, maintaining
maximum visibility. Occasionally, officers will come upon criminal
activities such as assaults or robberies, but for the most part, the
officer
will attempt to control a situation such as disorderly conduct or force
compliance (paying fares) without having to make an arrest."); see also
App. at 3139 (Davis Report)(quoting experienced officer as stating "[t]he
most important factors in my opinion of being a good officer is to be able
to think clearly at all times an [sic] verbalize and or articulate when
dealing with all people . . . . Running quickly is physically demanding,
although in the transit system, most dealings are close, physical
altercations."). In addition, it is unclear from the record whether the
Anne Arundel study itself was properly validated.

                                21
insufficient to validate an employer's discriminatory
practices.19 More fundamentally, however, nowhere in its
extensive opinion did the District Court consider whether
Dr. Davis' 42.5 mL/kg/min cutoff reflects the minimum
aerobic capacity necessary to perform successfully the job
of SEPTA transit police officer.

Instead, the District Court upheld this cutoff because it
was "readily justifiable." Lanning, 1998 WL 341605 at *57.20
The validation studies of SEPTA's experts upon which the
District Court relied to support this conclusion demonstrate
the extent to which this standard is insufficient under the
Act. The general import of these studies is that the higher
an officer's aerobic capacity, the better the officer is able to
perform the job. Setting aside the validity of these studies,
this conclusion alone does not validate Dr. Davis' 42.5
mL/kg/min cutoff under the Act's business necessity
standard.21 At best, these studies show that aerobic

(Text continued on page 24)
_________________________________________________________________

19. The danger of allowing an employer to carry its burden by relying
simply upon an expert's unvalidated judgment as to an appropriate
cutoff score in a testing device is illustrated by this case. In
determining
an appropriate cutoff for aerobic capacity, Dr. Davis rejected the SMEs'
estimate of the minimal qualifications necessary to perform the job even
though these SMEs were experienced transit officers. Dr. Davis then
determined that "a SEPTA transit officer needs an aerobic capacity of 50
mL/kg/min to successfully perform a number of tasks." Lanning, 1998
WL 341605 at *16 (emphasis added). Dr. Davis, however, revised this
requirement, finding that "the goals of SEPTA could be satisfied by using
a 42.5 mL/kg/min standard" after determining that the higher limit
would have a "draconian" effect on women. Id. There is no indication in
the District Court's opinion as to how Dr. Davis determined that the
lower standard would be sufficient. Where, as here, the cutoff score
chosen has a discriminatory disparate impact, Griggs prohibits the
establishment of exactly this type of arbitrary barrier to employment
opportunities.

20. The District Court seems to have derived this standard from the
Principles for the Validation and Use of Personnel Selection Procedures
("SIOP Principle"), principles published by the Society for Industrial and
Organizational Psychology as a professional guideline for conducting
validation research and personnel selection. To the extent that the SIOP
Principles are inconsistent with the mission of Griggs and the business
necessity standard adopted by the Act, they are not instructive.
21. The Court has cautioned that studies done in anticipation of
litigation to validate discriminatory employment tests that have already

                                22
been given must be examined with great care due to the danger of lack
of objectivity. Albemarle, 422 U.S. at 433 n.32. We also have warned in
a disparate impact context that "the story statistics tell depends, not
unlike beauty, upon the eye and ear of the beholder" and that "we must
apply a critical and cautious ear to one dimensional statistical
presentation." Bryant v. International Sch. Servs., Inc., 675 F.2d 562,
573
(3d Cir. 1982). A critical evaluation of the statistical studies relied
upon
by the District Court in this case, reveals several aspects of these
studies
that we find to be, at a minimum, disconcerting.

The following concerns are only a representative sample of possible
deficiencies in these studies: 1) While the ability to make an arrest may
be an important aspect of the job, the absolute number of arrests or
"arrest rates" do not necessarily correlate with successful job
performance. See App. at 3132 (noting that SEPTA officer should
generally attempt to control a situation without having to make an
arrest); 2) The study on arrests and arrest rates examined a
disproportionately large number of officers with an aerobic capacity over
42 mL/kg/min compared to the number of officers with an aerobic
capacity under that level which likely skewed the results. See, e.g., App.
at 3053 (comparing arrests of 231 officers with aerobic capacities under
the 42 mL/kg/min with arrests of 813 officers with aerobic capacities
over the 42 mL/kg/min); see also, 29 C.F.R.S 1607.14(B)(6)(noting that
"[r]eliance upon a selection procedure which is significantly related to a
criterion measure, but which is based upon a study involving a large
number of subjects and has a low correlation coefficient will be subject
to close review if it has a large adverse impact."); 3) The comparison of
aerobic capacity with commendations is not helpful absent finding as to
the subjective considerations involved in awarding commendations. See
Albemarle, 422 U.S. at 432-33; 4) The studies' emphasis on arrests for
"serious crimes" is suspect; these arrests account for only 7% of all
arrests and therefore represent only a small aspect of job. See generally
29 C.F.R. S 1607.14(B)(6)(noting that reliance on single selection
instrument which is related to only one of many job duties will be
subject to close review); 5) SEPTA's table on thefield performance of its
officers belies the contention that there is a strict linear relationship
of
arrests to aerobic capacity; officers at less than 37 mL/kg/min had an
average arrests of 13.6 compared to officers with at least a 48
mL/kg/min level who had average arrests of 13.9. See App. at 3065
(Defendant's Exhibit 52D); 6) The study on the average aerobic capacity
of perpetrators has little meaning unless SEPTA can show that arrests of
these perpetrators are typically aerobic contests; because SEPTA police
are armed, such a showing is unlikely.

                               23
capacity is related to the job of SEPTA transit officer. A
study showing that "more is better," however, has no
bearing on the appropriate cutoff to reflect the minimal
qualifications necessary to perform successfully the job in
question.

Dr. Siskin's testimony is particularly instructive on this
point. Dr. Siskin testified that in view of the linear
relationship between aerobic capacity and the arrest
parameters, any cutoff score can be justified since higher
aerobic capacity levels will get you more field performance
(i.e., "more is better"). See Lanning, 1998 WL 341605 at
*41. Under the District Court's understanding of business
necessity, which requires only that a cutoff score be
"readily justifiable," SEPTA, as well as any other employer
whose jobs entail any level of physical capability, could
employ an unnecessarily high cutoff score on its physical
abilities entrance exam in an effort to exclude virtually all
women by justifying this facially neutral yet discriminatory
practice on the theory that more is better.22 This result
contravenes Griggs and demonstrates why, under Griggs, a
discriminatory cutoff score must be shown to measure the
_________________________________________________________________

Because we are remanding for the District Court to reconsider this
evidence in light of the Griggs standard, we need not rule on whether
any of the District Court's prior findings as to these studies were
clearly
erroneous. We comment here on the validity of these studies only to
draw the District Court's attention to these concerns and to encourage
the District Court to take a critical look at these studies, if necessary,
on
remand.

22. Such a result has the potential to have a significant detrimental
impact on the amount and type of employment opportunities available to
women. Obviously, under a "more is better" theory, employers such as
police departments, fire departments and correctional facilities could
develop physical tests with unnecessarily high cutoffs that would
effectively exclude women from their ranks. Perhaps less obvious,
however, is the impact that this result could have on industries where
strength even minimally related to the job in question. For example, all
companies engaged in delivery, construction or any other type of
physical labor would be permitted to develop unnecessary strength
requirements on the theory that "more is better" or "the stronger the
worker, the faster the job gets done." This result is clearly unacceptable
given the policies underlying both Title VII and the disparate impact
theory of discrimination.

                               24
minimum qualifications necessary to perform successfully
the job in question.23

V.

For the foregoing reasons, it is clear to us that the
District Court did not employ the business necessity
standard implicit in Griggs and incorporated by the Act
which requires that a discriminatory cutoff score be shown
to measure the minimum qualifications necessary for
successful performance of the job in question in order to
survive a disparate impact challenge. We will therefore
vacate the judgment of the District Court and remand this
appeal for the District Court to determine whether SEPTA
has carried its burden of establishing that its 1.5 mile run
measures the minimum aerobic capacity necessary to
perform successfully the job of SEPTA transit police officer.24
Because this is the first occasion we have had to clarify the
_________________________________________________________________

23. This is not to say that studies that actually prove that "more is
better" are always irrelevant to validation of an employer's
discriminatory
practice. For example, a content validated exam, such as a typing exam
for the position of typist, which demonstrates that the applicants who
score higher on the exam will exhibit better job performance may justify
a rank-ordering hiring practice that is discriminatory. In such a case, a
validation study proving that "more is better" may suffice to validate the
rank-order hiring. This is true, however, in only the rarest of cases
where the exam tests for qualities that fairly represent the totality of a
job's responsibilities. It is unlikely that such a study could validate
rank-
hiring with a discriminatory impact based upon physical attributes in
complex jobs such as that of police officer in which qualities such as
intelligence, judgment, and experience surely play a critical role. This
is
especially true in SEPTA's case, where the record indicates that SEPTA
patrol officers encounter "running assists," the most strenuous task
upon which SEPTA's aerobic capacity testing predominately was
justified, at an average rate of only twice per year. Compare Lanning,
1998 WL 341605 at *5 (finding that SEPTA has approximately 380
running assists per year) with id. at *27 (noting that SEPTA has 190
patrol officers).

24. The District Court rejected as irrelevant the plaintiffs' evidence
that
incumbent officers had failed the physical fitness test yet successfully
performed the job and that other police forces function well without an
aerobic capacity admission test. See Lanning, 1998 WL 341605 at *68-
*70. Under the standard implicit in Griggs and incorporated into the Act,
this evidence tends to show that SEPTA's cutoff score for aerobic
capacity does not correlate with the minimum qualifications necessary to
perform successfully the job of SEPTA transit officer. Accordingly, this
evidence is relevant and should be considered by the District Court on
remand.

                               25
Act's business necessity standard, on remand the District
Court may wish to exercise its discretion to allow the
parties to develop further the record in keeping with the
standard announced here.

                               26
WEIS, Circuit Judge, dissenting:

The "minimum qualifications" criterion of business
justification does not apply to all types of employment.
When public safety is at stake, a lighter burden is placed
on employers to justify their hiring requirements. Because
I believe that the latter standard applies in this case, I
would affirm.

I.

Concerned about its inability to control crime on its
property, SEPTA instituted a three-pronged attack on the
problem. It added a substantial number of officers,
implemented a zone method of patrol, and adopted
standards to improve the generally poor physical condition
of its officers. Unlike many metropolitan police
departments, SEPTA officers are deployed alone and on
foot, engaging in physical activities more frequently than
other law enforcement agencies.

The patrol zones present significant variations in
conditions that affect the physical exertion of officers in the
performance of their duties. Zone One, for example, has a
climb of 30 to 50 steps from street level. Zone Three, a
mixture of above- and below-ground locations, borders a
large shopping mall, featuring retail theft and pursuits that
lead into the SEPTA transit system. Zone Five, which
includes sports complexes, is characterized by long
distances between stations. Zone Six includes the Temple
University area, a scene of frequent crimes against
students.

SEPTA officers must occasionally ask for assistance from
their comrades in other zones. These calls are divided into
two categories, "officer assists" and "officer backups." An
"assist" requires officers to respond immediately. Often the
only method available to get to the scene quickly is a run
of five to eight city blocks. An officer responding to an
"assist" must preserve enough energy to deal effectively
with a situation once arriving on the scene. SEPTA averages
about 380 running assists per year. "Backups" are not as
critical as "assists," so officers generally use a "paced jog."
SEPTA averages about 1,920 "backups" annually.

                                27
For help in attaining its fitness goals, SEPTA turned to
Dr. Paul Davis, an acknowledged expert in the field who
had recommended corrective measures for numerous law
enforcement and government agencies. At the time Dr.
Davis began his research for SEPTA, an officer's equipment
load was 12 pounds; it is now nearly 26 pounds. Dr. Davis
found that officers need "sound, intact, disease-free
cardiovascular system[s]" to effectively perform their jobs.
These requirements implicate aerobic capacity, i.e., the
ability of the body to utilize oxygen during sustained
physical activities such as running, swimming, and cycling.
Aerobic capacity is commonly measured in units of
milliliters of oxygen per kilogram of body weight per minute
-- "mL/kg/min," or "mL."

SEPTA officers typically run or jog on a daily basis from
three to eight city blocks for periods of three to ten
minutes. They also engage in stair climbing, which requires
a capacity of 54 mL. In light of this and other evidence, Dr.
Davis concluded that SEPTA transit officers need an
aerobic capacity of 50 mL. After determining that such a
level would have a "draconian" effect on female applicants,
however, Dr. Davis lowered his recommendation to 42.5
mL. That capacity could be demonstrated by running 1.5
miles in 12 minutes, a test that was adopted for applicants.

Dr. Davis had done a similar study for a fire department
in St. Paul, Minnesota, which -- in setting a standard of 45
mL -- required applicants to run 1.5 miles in 11 minutes
and 40 seconds. Eighty percent of male applicants and 76%
of female applicants passed this test.

In addition to Dr. Davis' testimony, SEPTA also presented
evidence from other experts to demonstrate a statistically
significant correlation between aerobic capacity and the
number of arrests made by individual SEPTA officers.
Furthermore, of 207 commendations, 96% went to officers
with an average capacity of 46 mL. Of these awards, 198
involved arrests, and 116 involved a foot pursuit, use of
force or other physical exertion. Another study indicated
that 51.9% of offense perpetrators had a capacity of 48 mL
or higher, with only 27% having lower than a 42 mL rating.

The record demonstrates that a smaller percentage of
female applicants passed the running test than males, but

                                28
that nearly all women who trained for it were able to pass.
The named plaintiffs and some of the class members who
failed demonstrated, for the most part, a "cavalier" attitude
towards the running test. Videotapes showed some of these
applicants walking at the halfway point, either because
they were indifferent or unable to run for even that short a
period of time. Thus, although there was a significant
disparity between the pass-fail rates of male and female
applicants, the extent of the difference appears to have
been exaggerated to some extent by the approach taken by
some of the applicants.

A physiologist, Dr. Lynda Ransdell, testified that 40% of
all women starting at an aerobic capacity of 35 to 37 mL
can train to pass the running test in eight weeks, and that
10% of all women between 20 and 29 years of age can do
so without any training. She concluded that the average
sedentary woman can achieve SEPTA's performance
standard with only moderate training. SEPTA sent
applicants a letter outlining recommended training
techniques that Dr. Ransdell testified were adequate.

Plaintiffs introduced the testimony of Dr. William
McArdle, who suggested the use of a "relativefitness" test
in which all applicants would be required to meet the 50th
percentile of aerobic capacity for their gender--
approximately 42 mL for males, and 36 mL for females.
However, Dr. Robert Moffatt, a defense expert who
conducted tests of the aerobic capacity necessary to
perform a SEPTA officer's duties, disagreed. He stated that
female officers with a capacity of 36 mL would not be able
to capably perform their duties after running to an"assist"
or a "backup." Dr. Bernard Siskin, another defense expert,
found that the arrest rate for females with a 36 mL capacity
was significantly lower than that of males with a 42 mL
capacity.

The District Court rejected Dr. McArdle's proposal
because it would not serve SEPTA's business goal of
providing a police force capable of performing the physical
requirements of the job nearly as well as the existing test.
Instead, the court found that "Dr. Davis' study, standing
alone, met the professional standards for construct
validation and satisfies defendant's burden of

                               29
demonstrating job relatedness and business necessity."
Moreover, his study had sufficient empirical support for an
aerobic capacity requirement of 42.5 mL.

II.

The dispute in this case centers on the applicable
standard of business justification under the Civil Rights Act
of 1991. See Pub. L. No. 102-166, Title I,S 105(a), 105 Stat.
1074-75 (adding 42 U.S.C. S 2000e-2(k)). The pertinent
section provides: "An unlawful employment practice based
on disparate impact is established . . . only if-- [the]
complaining party demonstrates that a respondent uses a
particular employment practice that causes a disparate
impact on the basis of . . . sex . . . and the respondent fails
to demonstrate that the challenged practice is job related
for the position in question and consistent with business
necessity[.]" 42 U.S.C. S 2000e-2(k)(1)(A).

This addition to Title VII was passed in response to the
Supreme Court's decision in Wards Cove Packing Co., Inc.
v. Atonio, 490 U.S. 642 (1989). In that case, the Court held
that after a plaintiff makes a prima facie showing of
disparate impact, the defendant bears the burden to
produce evidence of business justification. See id. at 659.
The burden of persuasion, however, remains at all times
with the plaintiff. See id. As to what showing would satisfy
business justification, the Court held that "the dispositive
issue is whether a challenged practice serves, in a
significant way, the legitimate employment goals of the
employer." Id. However, "there is no requirement that the
challenged practice be `essential' or `indispensable' to the
employer's business for it to pass muster." Id.

Some members of Congress were displeased with the
result in Wards Cove and argued for a stricter standard of
business justification based on their reading of pre-Wards
Cove cases. After two years of legislative struggle, Congress
and the President agreed upon a compromise bill. Whether
the ambiguous language of the statute accomplished that
purpose has been the subject of lively debate.1
_________________________________________________________________

1. In addition to the law review commentaries cited by the majority, see
also Rosemary Alito, Disparate Impact Discrimination Under the 1991

                               30
The 1990 bill, which had been vetoed by the President,2
had used the phrase "required by business necessity,"
rather than "consistent with business necessity," as used in
the 1991 Act. The substitution of the word "consistent" was
considered to indicate a standard less stringent than would
"required." In that light, a fair reading of the 1991 Act is
"the challenged practice is job related for the position in
question and in harmony with business necessity."

It may fairly be said that the language ultimately adopted
in the 1991 Act reflects an "agreement to disagree" and a
return of the dispute to the courts for resolution. In short,
unable to muster a veto-proof majority for either view,
Congress "punted." This conclusion is underscored by
Congress' highly unusual admonition that the courts
consider only a designated "interpretive memorandum" as
legislative history, rather than the more elaborate
committee reports and other materials that customarily
reveal the extent of the controversy between various views.
_________________________________________________________________

Civil Rights Act, 45 Rutgers L. Rev. 1011, 1033 (1993) ("Only . . . cases
requiring proof of job-relatedness and a reasonable need for the
challenged practice accord[ ] with both the statutory language of the
1991 Act and the applicable Supreme Court precedent."); Kingsley R.
Browne, The Civil Rights Act Of 1991: A "Quota Bill," A Codification Of
Griggs, A Partial Return To Wards Cove, Or All Of The Above?, 43 Case
W. Res. L. Rev. 287, 349 (1993) ("business necessity" has the same
meaning as the Wards Cove phrase "serves, in a significant way"); Linda
Lye, Comment, Title VII's Tangled Tale: The Erosion and Confusion of
Disparate Impact and the Business Necessity Defense , 19 Berkeley J.
Employment & Lab. L. 315, 358 (1998) (a challenged practice must be a
"reasonable predictor of effective performance of job duties," defined in
light of "important business goals").

2. The fear of quota hiring was behind the President's refusal to sign
earlier versions of the bill. See Statement of President George Bush Upon
Signing S. 1745, reprinted in 1991 U.S.C.C.A.N. 768 (stating that the Act
promotes the goals of ridding discrimination, allowing employers to hire
on the "basis of merit and ability without the fear of unwarranted
litigation," without leading to quotas or incentives for needless
litigation).
For a discussion of the drafting of the Civil Rights Act of 1991, see 2
Lex
K. Larson, Employment Discrimination S 23.04[1] (2d ed. 1999). For
analysis of the rejected 1990 bill, see Cynthia L. Alexander, The Defeat
of the Civil Rights Act of 1990: Wading Through the Rhetoric In Search of
Compromise, 44 Vand. L. Rev. 595 (1991).

                               31
See Pub. L. No. 102-166, Title I, S 105(b), 105 Stat. 1075.
The interpretive memorandum states that: "The terms
`business necessity' and `job related' are intended to reflect
the concepts enunciated by the Supreme Court in Griggs v.
Duke Power Co., 401 U.S. 424 (1971), and in the other
Supreme Court decisions prior to Wards Cove Packing Co.
v. Atonio, 490 U.S. 642 (1989)." 137 Cong. Rec. S15276
(daily ed. Oct. 25, 1991).

Congress' reference to the Griggs line of Supreme Court
decisions, however, does little to clear the air because the
language in those opinions has caused confusion. 3 The
problem can ultimately be traced back to Griggs itself. In
that case, which involved power-plant jobs, the Court held
that a high school completion requirement and general
intelligence tests that disproportionately disqualified black
applicants were not significantly job related. The Court
said: "The touchstone is business necessity." Griggs, 401
U.S. at 431. However, the very next sentence reads,"[i]f an
employment practice . . . cannot be shown to be related to
job performance, the practice is prohibited." Id. Thus, the
Court speaks of both "necessity" and "job-relatedness" in
the same breath.

In the following paragraph, we read that neither
employment requirement is "shown to bear a demonstrable
relationship to successful performance of the jobs for which
it was used. Both were adopted . . . without meaningful
study of their relationship to job-performance ability." Id.
The Court also refers to "testing mechanisms[that are]
unrelated to measuring job capability," "job-related tests,"
and states that "any given requirement must have a
manifest relationship to the employment in question." Id. at
432-34, 436. Not once does the opinion repeat or expound
upon "business necessity." Unquestionably,"job-
relatedness" is Griggs' dominant thread.

The Court also cited with approval former EEOC
Guideline 29 C.F.R. S 1607.4(c), which required employers
_________________________________________________________________

3. See Peter Brandon Bayer, Mutable Characteristics and the Definition of
Discrimination Under Title VII, 20 U.C. Davis L. Rev. 769, 822 & n.213
(1987) ("Both the Supreme Court and lower court rulings offer a
confusing patchwork of seemingly conflicting standards.").

                               32
to produce data "demonstrating that the test is predictive of
or significantly correlated with important elements of work
behavior which comprise or are relevant to the job or jobs
for which candidates are being evaluated." Id . at 433 n.9.

The Court next visited the concept of business
justification in Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975), where a paper mill was using screening tests that
had a disparate impact on black applicants. The issue,
according to the Court, was whether the employer had
shown the tests to be "job related." Id . at 408. The Court
concluded that the employer's validation study was
defective because it "involved no analysis of the attributes
of, or the particular skills needed in, the studied job
groups." Id. at 432. The Court was also critical of hiring
decisions based on the subjective opinions of supervisors.
See id. at 432-33.

The portion of Albemarle most relevant to the case at
hand focused on whether tests that take into account
capability for promotion may be utilized if such long-range
requirements fulfill a "genuine business need." Id. at 434.
The employer's validation study focused on the scores
achieved by job groups near the top of the various lines of
progression. The Court observed that those results did "not
necessarily mean that the test, or some particular cutoff
score on the test, is a permissible measure of the minimal
qualifications of new workers entering lower level jobs." Id.
at 434. Thus, the validation study was faulty because there
had been "no clear showing that differential validation was
not feasible for lower level jobs." Id. at 435.

The Court next considered appropriate criteria in
Washington v. Davis, 426 U.S. 229 (1976), which involved
written tests that allegedly had a discriminatory impact on
black applicants for police officer positions. Although the
suit was not brought under Title VII, the Court discussed
Griggs and Albemarle. The district judge had concluded
"that a positive relationship between the test and training-
course performance was sufficient to validate the[test],
wholly aside from its possible relationship to actual
performance as a police officer." Id. at 250. Significantly,
the Supreme Court remarked that such a conclusion was
not foreclosed by either Griggs or Albemarle and "it seems

                               33
to us the much more sensible construction of the job-
relatedness requirement." Id. at 250-51. Dismissing
challenges to the test, the Court remarked that"some
minimum verbal and communicative skill would be very
useful, if not essential, to satisfactory progress in the
training regimen." Id. at 250.

In another case, Dothard v. Rawlinson, 433 U.S. 321
(1977), the Court held that height and weight requirements
for prison guards could not stand. The ruling was based on
the employer's failure to produce any evidence to correlate
those standards with "the requisite amount of strength
thought essential to good job performance." Id. at 331. In a
footnote, Dothard repeated Griggs' statement that "[t]he
touchstone is business necessity," and further stated that
"a discriminatory employment practice must be shown to
be necessary to safe and efficient job performance to
survive a Title VII challenge." Id. at 332 n.14. Earlier in the
body of the opinion, the Court explained that the employer
must show that a requirement has " `a manifest
relationship to the employment in question.' " Id. at 329
(quoting Griggs, 401 U.S. at 432).

In yet another context, the Court upheld an employer's
prohibition of employment to users of methadone, despite
claims of disparate impact on blacks and Hispanics. See
New York City Transit Authority v. Beazer, 440 U.S. 568,
587 (1979). To the Court, the employer's narcotics rule,
even in its application to methadone users, was"job
related." Id.

Beazer quoted the District Court's observation that
"those goals [i.e., safety and efficiency] are significantly
served by--even if they do not require--[the employer's] rule
as it applies to all methadone users including those who
are seeking employment in non-safety-sensitive positions."
Id. at 587 n.31. The Supreme Court concluded that "[t]he
record thus demonstrates that [the employer's] rule bears a
`manifest relationship to the employment in question.' " Id.
(quoting Griggs, 401 U.S. at 432).

The Beazer Court observed that most of the affected job
positions were "attended by unusual hazards and must be
performed by `persons of maximum alertness and

                               34
competence.' " Id. at 571. Other positions were "critical" or
"safety sensitive," and many involved "danger to [the
employees] or to the public." Id.

III.

As the preceding sketch of pre-Wards Cove opinions
demonstrates, the Supreme Court's articulations of the
appropriate standards are far from clear. Phrases such as
"business necessity," "demonstrable relationship to
successful performance of the job," "manifest relationship
to the employment in question," "genuine business needs,"
and "essential to good job performance," have been used
interchangeably. These varying formulations bring to mind
Justice Holmes' observation, "A word is not a crystal,
transparent and unchanged, it is the skin of a living
thought and may vary greatly in color and content
according to the circumstances and the time in which it is
used." Towne v. Eisner, 245 U.S. 418, 425 (1918).

My study of the standard for business justification as set
forth by the Civil Rights Act of 1991 convinces me that it
remains essentially the same as it was in the pre-Wards
Cove era. However, other than its holding on burden of
proof, it does not seem that Wards Cove was a
revolutionary pronouncement. Until the Supreme Court
reexamines the subject, however, courts will continue to
struggle with the often inconsistent phraseology employed
in Griggs and its progeny. The definition and application of
the appropriate standard for business justification will
depend on the context in which it is raised. There are
significant factual differences in the cases that explain, to
some extent, the differing formulations. Albemarle and
Griggs applied greater scrutiny when the disparate impact
affected entry to lower-level jobs, where it is fair to assume
that no special qualifications would be generally expected.

In contrast, Beazer and Washington raised an additional
important consideration -- public safety. Beazer concerned
jobs involving serious dangers to employees as well as to
transit passengers. In Washington, a written test
demonstrating an applicant's ability to complete police
officer training was job-related, even apart from its

                                35
relationship to actual performance as a police officer. The
impact of public safety concerns on employee qualifications
is inescapable, and serves to differentiate those positions
from lower-level, nonsafety-sensitive ones.4

The Courts of Appeals have explicitly recognized the
relevance of safety considerations in a series of decisions
beginning with Spurlock v. United Airlines, Inc., 475 F.2d
216 (10th Cir. 1972). In that case, an airline required that
applicants for flight officer positions have a college degree
and a minimum of 500 flight hours. The Court, citing
Griggs, held that where "the job clearly requires a high
degree of skill and the economic and human risks involved
in hiring an unqualified applicant are great, the employer
bears a correspondingly lighter burden to show his
employment criteria are job related." Id. at 219. Because, in
the case of pilots, "[t]he risks involved in hiring an
unqualified applicant are staggering . . . . [t]he courts . . .
should proceed with great caution before requiring an
employer to lower his pre-employment standards for such a
job." Id.

Another leading case, Davis v. City of Dallas , 777 F.2d
205 (5th Cir. 1985), applied the Spurlock doctrine to criteria
for hiring police officers. The City required a specific
amount of college education, no history of recent marijuana
usage, and a negative history of traffic violations. Despite
findings of disparate impact, the Court upheld the
requirements. Having reviewed the many cases following
Spurlock, the Court had "no difficulty . . . equating the
position of police officer in a major metropolitan area such
as Dallas with other jobs that courts have found to involve
the important public interest in safety." Id. at 215 (internal
quotation marks omitted). The degree of public risk and
responsibility alone "would warrant examination of the job
relatedness of the . . . education requirement under the
lighter standard imposed under Spurlock and its progeny."
Id. at 215.
_________________________________________________________________

4. See Andrew C. Spiropoulos, Defining the Business Necessity Defense to
the Disparate Impact Cause of Action: Finding the Golden Mean, 74 N.C.
L. Rev. 1479 (1996).

                               36
Observing the nature of the positions at issue in Griggs
and Albemarle, Davis noted that in neither case did the
Supreme Court suggest that those jobs "were noteworthy
for their dangerousness or importance to the public
welfare." Id. at 210. In contrast, the employment under
consideration in Davis directly implicated public safety
concerns. See id. at 211. It is interesting that Justice
Blackmun, in Watson v. Fort Worth Bank & Trust, 487 U.S.
977 (1988) (plurality op.), objecting to what he considered
to be a tendency to weaken the employer's burden, cited
Davis favorably, stating that "[t]he proper means of
establishing business necessity will vary with the type and
size of the business in question, as well as the particular
job" in question. Id. at 1007. (Blackmun, J., concurring in
part and concurring in the judgment).5

In a post-Wards Cove case involving firefighters, the
Court of Appeals for the Eleventh Circuit noted that such
"safety claims would afford the City an affirmative defense,
for protecting employees from workplace hazards is a goal
that, as a matter of law, has been found to qualify as an
important business goal for Title VII purposes." Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir. 1993) (citing
Beazer, 440 U.S. at 587 & n. 31; Dothard, 433 U.S. at 331
n. 14). Thus, "[m]easures demonstrably necessary to
meeting the goal of ensuring worker safety are therefore
deemed to be `required by business necessity' under Title
VII." Id.

In a similar case, the Court of Appeals for the Eighth
Circuit wrote that "the law does not require the city to put
the lives of [plaintiff] and his fellow firefighters at risk by
taking the chance that he is fit for duty when solid
scientific studies indicate that persons with test results
similar to his are not." Smith v. City of Des Moines, 99 F.3d
1466, 1473 (8th Cir. 1996). Other Courts of Appeals have
_________________________________________________________________

5. In the analogous context of the defense of bona fide occupational
qualification, the Supreme Court has stated: " `The greater the safety
factor, measured by the likelihood of harm and the probable severity of
that harm in case of an accident, the more stringent may be the job
qualifications . . . .' " Western Air Lines, Inc. v. Criswell, 472 U.S.
400,
413 (1985) (quoting with approval Usery v. Tamiami Trail Tours, Inc., 531
F.2d 224, 236 (5th Cir. 1976)).

                               37
reached similar conclusions in cases involving safety-
sensitive positions such as truck drivers, bus drivers,
firefighters, and police officers.6

IV.

The issues that separate the parties are straightforward.
Plaintiffs do not seriously contest the fact that aerobic
capacity is a valid predictor of efficient job performance as
a transit police officer. They do not challenge the finding
that running for 1.5 miles is an effective way to measure
aerobic capacity. Nor apparently do they suggest that 42.5
mL is an inappropriate cut-off for male applicants: they
implicitly accept this standard by advancing Dr. McArdle's
alternative test, which would use that score for males and
a lower one for females.

Even the government plaintiff concedes that an employer
may improve its workforce. U.S. Br. at 35 (citing Griggs, 401
U.S. at 431).7 Griggs, in turn, stressed that tests "must
_________________________________________________________________

6. See, e.g., York v. American Telephone & Telegraph Co., 95 F.3d 948,
952, 959 (10th Cir. 1996) (powerhouse operating engineers); Zamlen v.
City of Cleveland, 906 F.2d 209, 217 (6th Cir. 1990) (firefighters); Hamer
v. City of Atlanta, 872 F.2d 1521, 1535 (11th Cir. 1989) (firefighters);
Levin v. Delta Air Lines, Inc., 730 F.2d 994, 997-98 (5th Cir. 1984)
(flight
attendants); Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251,
1261-63 (6th Cir. 1981) (truck yard employees); Harriss v. Pan American
World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1980) (flight
attendants); McCosh v. City of Grand Forks, 628 F.2d 1058, 1063 (8th
Cir. 1980) (police); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th
Cir. 1977) (airline pilots); see also Alito, supra, at 1033-35 & n.100.

7. It is interesting that in the legislative history of the original text
of Title
VII, congressional advocates argued that "title VII would not require, and
no court could read title VII as requiring, an employer to lower or change
the occupational qualifications he sets for his employees . . . ." 110
Cong. Rec. 7246-47 (April 8, 1964) (interpretive memorandum of Sen.
Case). Senators Clark and Case stated that the "employer may set his
qualifications as high as he likes . . . ." Id. at 7213 (April 8, 1964)
(interpretive memorandum of Sens. Clark and Case). Senator Humphrey
stated that "[t]he employer, not the Government, will establish the
standards." Id. at 13088 (June 9, 1964). Thus, the legislative history of
Title VII "clearly reveals that Congress was concerned about preserving
employer freedom, and that it acted to mandate employer color-blindness
with as little intrusion into the free enterprise system as possible."
Contreras v. City of Los Angeles, 656 F.2d 1267, 1278 (9th Cir. 1981).

                               38
measure the person for the job and not the person in the
abstract." Griggs, 401 U.S. at 436. SEPTA's running test
attempts to do just that, i.e., improve the caliber of its
police force by selecting new hires to fit appropriately
heightened performance standards.

A fair appraisal of the plaintiffs' objection is that the
running test's cut-off requires female applicants to run
faster than a majority of women can run without training.
However, nearly all of the women who did train were able
to pass the test. Also, not all males were able to pass,
although their failure percentages were substantially lower.

Plaintiffs complain that SEPTA cannot point to any
instances where a perpetrator of a crime got away, or an
offense was committed because of an officer's lack of
aerobic capacity. But as noted by Fitzpatrick, "[t]he mere
absence of unfortunate incidents is not sufficient" to
preclude a particular safety requirement because otherwise,
such "measures could be instituted only once accidents
had occurred rather than in order to avert accidents."
Fitzpatrick, 2 F.3d at 1120-21.

Here, where applicants have it within their power to
prepare for the running test, they may properly be expected
to do so. In view of the important public safety concerns at
issue, it is not unreasonable to expect all applicants --
female or male -- to take the necessary steps in order to
qualify for the positions.

The District Court's conclusions must be appraised
against this background. The trial was lengthy and the
evidence extensive. The findings of fact on job needs with
respect to aerobic capacity are not clearly erroneous. This
conclusion is mandated by the standard that clear error
exists only when, on the entire evidence, a court is left with
the definite, firm conviction that a mistake has been
committed. See Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985). If the account of the District Court is
"plausible in light of the record viewed in its entirety," we
may not reverse even if we are convinced that had we "been
sitting as the trier of fact, [we] would have weighed the
evidence differently." Id. at 574.

                                39
Moreover, "[w]here there are two permissible views of the
evidence, the factfinder's choice between them cannot be
clearly erroneous." Id. "This is so even when the district
court's findings . . . are based instead on physical or
documentary evidence or inferences from other facts." Id.
Where findings are based on credibility determinations,
appellate review accords even greater deference to the
findings of the District Court. See id. at 575. Courts
routinely hold that business justification is reviewed for
clear error. See, e.g., Davis, 777 F.2d at 208 & n.1;
Spurlock, 475 F.2d at 219-20. I accept, therefore, that 42.5
mL is an appropriate level for the position of a SEPTA
officer, that it is reasonable, and that it is attainable by
otherwise physically fit female applicants with moderate
training.

The question then, is whether SEPTA's standard is
permissible under the terms of the Civil Rights Act of 1991
and the relevant precedents. The District Court rejected the
plaintiffs' contention that "business necessity" under the
statute is governed by a footnote in Dothard that states: "[A]
discriminatory employment practice must be shown to be
necessary to safe and efficient job performance . . . ."
Dothard, 433 U.S. at 332 n.14. Rather, looking to Griggs
and Beazer, the District Court stated that SEPTA need only
show that its tests "significantly serve, but are neither
required by nor necessary to, the employer's legitimate
business interests" -- in other words, that it "bears a
manifest relationship" to the employment in question.

In disagreeing with the criteria used by the District
Court, the majority holds that "a discriminatory cutoff score
is impermissible unless shown to measure the minimum
qualifications necessary for successful performance of the
job in question." The difficulties presented by this standard
are illustrated by the testimony of Dr. McArdle, the
plaintiffs' expert. In essence, he proposed that female
applicants be expected to meet 50% of their aerobic
capacity, translating to 36 mL, but that males continue at
the 50% level of 42.5 mL. That standard would, of course,
have less adverse impact on women, but according to the
findings of the District Court, would also have a
detrimental impact on the effectiveness of the SEPTA
transit police.

                               40
With this in mind, I cannot agree that the majority's
standard is the correct one for this case. Reducing
standards towards the lowest common denominator is
particularly inappropriate for a police force. Undoubtedly,
candidates who fail the running test -- female or male --
may have other qualities of particular value to SEPTA, but
they must possess the requisite aerobic capacity as well. No
matter how laudable it is to reduce job discrimination, to
achieve this goal by lowering important public safety
standards presents an unacceptable risk.

Aerobic capacity is an objective, measurable factor which
gauges the ability of a human being to perform physical
activity. The aerobic demands on the human system are
affected by absolutes such as the distance traveled, the
speed, the number of steps to be climbed, and similar
factors. Governmental agency pronouncements will not
shorten distances, reduce the number of steps, or decrease
the aerobic capacity of perpetrators to match the reduced
standards of officers, male or female.8 Some males and
more females cannot meet the necessary requirements.
Based on the facts established at trial, those individuals
simply cannot perform the job efficiently. To the extent that
they cannot, their hire adversely affects public safety.
_________________________________________________________________

8. Although the government is a plaintiff in this dispute, I would note
that some agencies take a somewhat different tack on the issue of
aerobic fitness. The U.S. Forest Service, for instance, requires
firefighters
to have an aerobic capacity of 45 to 48 mL, and recommends one of up
to 50. See United States Department of Agriculture, Forest Service,
Technology & Development Program, Fitness and Work Capacity 51 (2d
ed. 1997). Notably, that agency currently uses a 1.5 mile run test. See
id. at 50-51.

Also, the Presidential Physical Fitness Award is available to children
who meet the 85th percentile of fitness by meeting target levels in events
such as a one-mile run. See Qualifying Standards (updated Oct. 15,
1998). http://www.indiana.edu/#A1#preschal/qualifying.html>.

The Centers For Disease Control and Prevention lament that more
than 60% of U.S. adults do not engage in the recommended amount of
activity, and 25% are not active at all. See Physical Activity and Health,
Adults (viewed May 7, 1999) http://www.cdc.gov/nccdphp/sgr/
adults.htm>.

                               41
The current Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. S 1607 ("EEOC Guidelines"), are not
as strict as the standard suggested by the majority. In
discussing cut-off scores, the Guidelines explicitly state
that "they should normally be set so as to be reasonable
and consistent with normal expectations of acceptable
proficiency within the work force." 29 C.F.R.S 1607.5(H)
(1998). Further, the EEOC Guidelines standard --
"predictive of or significantly correlated with important
elements" -- has been cited by the Supreme Court with
approval on several occasions. See Albemarle, 422 U.S. at
431 (quoting former 29 C.F.R. S 1607.4(c)); Griggs, 401 U.S.
at 433 n.9 (quoting same); see also 29 C.F.R. S 1607.5(B)
(1998).

Further, Albemarle's reference to "minimal qualifications"
was directed only to the inappropriateness of using a test
geared towards higher-level jobs as a screen for entry-level
positions. See Albemarle, 422 U.S. at 434. This holding,
which is minimally relevant to the matter at hand, is
doubly inapplicable when the job affects public safety. See
Davis, 777 F.2d at 211 n.5.9

I see no need to remand this case to the District Court.
Whatever standard is used, the findings of fact require an
affirmance. Although the District Court rejected the
plaintiffs' argument that the Dothard footnote, rather than
Beazer, supplied the proper standard, the factual findings
make it clear that under either formulation, the District
Court reached the correct result.

The Dothard footnote states that the challenged practice
must be "necessary to safe and efficient job performance."
Dothard, 433 U.S. at 331 n.14. The District Court, also in
a footnote, wrote "physical fitness is only one trait or ability
required of SEPTA officers, [but] it is a trait or ability that
is necessary for and critical to the successful performance
of the job, and thus SEPTA should be able to test for such
_________________________________________________________________

9. The plaintiffs also suggest that SEPTA's validation studies were
insufficient. However, strict compliance with the EEOC Guidelines is not
necessary in all cases. See Beazer, 440 U.S. at 587 n.31; Washington,
426 U.S. at 250-51. In cases involving public safety, courts have held
that empirical validation is not required. See Boyd, 568 F.2d at 54.

                               42
a trait." This finding more than complies with Dothard's
footnote by concluding that not only is physical fitness
"necessary" to safe and efficient job performance as SEPTA
officers, but that it is "critical" to successful performance of
these jobs. Moreover, the finding clearly meets even the
criterion that cut-off scores "measure the minimum
qualifications necessary for successful performance of the
job." (emphasis added).

Nor can there be any doubt that the factual findings here
satisfy Griggs' requirement of "business necessity."
Unquestionably, SEPTA's test is job-related and there can
be no doubt that physical fitness, and particularly aerobic
capacity, is necessary for adequate performance of the job
of a SEPTA transit officer. The findings are convincing that
42.5 mL is a reasonable cut-off point for determining the
physical ability necessary for successful performance of the
job. Consequently, even under the plaintiffs' reading of the
1991 Act, which relies so much on Dothard, the judgment
in favor of the defendant should be affirmed.

To my mind, the correct standard for this case is that of
Spurlock-Davis, one that places greater emphasis on the
safety of the public and fellow officers. I have no doubt that
this line of cases survives the Civil Rights Act of 1991,
because those opinions -- as noted in Congress'
"interpretive memorandum" -- "reflect the concepts
enunciated" in Supreme Court decisions prior to Wards
Cove. See Watson, 487 U.S. at 998; Beazer, 440 U.S. at
587 n.31; Washington, 426 U.S. at 250; Smith, 99 F.3d at
1473; Fitzpatrick, 2 F.3d at 1119. Safety concerns are
clearly "concepts" considered by the Supreme Court and
applied in various factual circumstances by the Courts of
Appeals, both in pre- and post-Wards Cove cases. Nothing
in the legislative history casts any doubt on the continued
viability of these opinions.

Although it did not cite Spurlock-Davis, the District Court
stated in its conclusions of law that "employers such as
SEPTA should be encouraged to improve the efficiency of its
workforce, especially where public safety is implicated by
the particular job as it is with SEPTA." More emphatically,
it stated that "[t]he Court simply will not condone dilution
of readily obtainable physical abilities standards that serve

                               43
to protect the public safety in order to allow unfit
candidates, whether they are male or female, to become
SEPTA transit police officers."

Although the District Court only inferentially applied
Spurlock-Davis, I would do so explicitly and affirm the
judgment on that basis.10 Here, the record supplies ample
evidence about safety concerns related to the performance
of SEPTA officers. In cases such as these, courts should
decline to lower standards in an effort to reduce disparate
impact when that goal comes at the expense of public
safety. Due deference should be afforded to the experience
of specialized employers in setting appropriate requirements
for safety-sensitive positions.

V.

The Lanning appellants propose a number of alternative
practices that they suggest would have a lesser disparate
impact while still serving SEPTA's goals. First, they suggest
that SEPTA select medically fit applicants who pass fitness
requirements at the end of their training at the Philadelphia
Police Academy. Second, as noted earlier, they argue in
favor of a relative fitness test (i.e., one with a lower cut-off
point for females). Third, they prompt SEPTA to propose an
alternative.

For plaintiffs to establish a satisfactory alternative, they
must "make[ ] the demonstration described in [42 U.S.C.
S 2000e-2(k)(1)(C)] with respect to an alternative
employment practice and [establish that] the[employer]
refuses to adopt such alternative employment practice." 42
U.S.C. S 2000e-2(k)(1)(A)(ii). To meet this burden, the
plaintiffs' proposed alternatives must have less disparate
impact and "also serve the employer's legitimate interest in
`efficient and trustworthy workmanship.' " Albemarle, 422
U.S. at 425; see also NAACP v. Medical Ctr., Inc., 657 F.2d
1322, 1336 n.17 (3d Cir. 1981) (en banc). As stated in
_________________________________________________________________

10. An order of the District Court may be affirmed on alternative grounds
where the judgment is supported by the record below. See Guthrie v.
Lady Jane Collieries, Inc., 722 F.2d 1141, 1144-45 & n.1 (3d Cir. 1983)
(citing Helvering v. Gowran, 302 U.S. 238, 245 (1937)).

                               44
Watson, the alternative test must "be equally as effective as
the challenged practice in serving the employer's legitimate
business goals." Watson, 487 U.S. at 998.

The District Court found that none of the plaintiffs'
proposals served SEPTA's legitimate interest in having a
more physically fit work force. If SEPTA may require an
aerobic capacity of 42.5 mL after training at the police
academy, as plaintiffs propose, it is unclear how that
practice would be any less discriminatory than requiring it
before hire. In short, that plan would simply require that
training be on "company time" rather than on that of the
applicants.

As to the relative fitness test proposed by the plaintiffs'
expert, the factual findings demonstrate that officers with a
capacity of 36 mL do not serve SEPTA's needs as well as
the required standard of 42.5 mL.11 Finally, the proposal
that SEPTA come forward with an alternative is not an
alternative at all. Thus, plaintiffs have failed to meet their
burden to establish an alternative employment practice.

I would affirm the judgment of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

11. The Civil Rights Act of 1991 presents another potential barrier to the
relative fitness test. Subsection 2000e-2(l) prohibits "in connection with
the selection or referral of applicants or candidates for employment . . .
to . . . use different cutoff scores for . . . employment related tests on
the
basis of . . . sex[.]" By its plain language, 42 U.S.C. S 2000e-2(l)
arguably
prohibits a relative fitness test. The District Court concluded that this
provision did not apply. I have some doubt on that ruling, but need not
reach that issue because I would affirm on other bases.

                               45
