                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2002

Lanning v. SEPTA
Precedential or Non-Precedential: Precedential

Docket No. 01-1040




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http://digitalcommons.law.villanova.edu/thirdcircuit_2002/649


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PRECEDENTIAL

       Filed October 15, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1040

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

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); RICHARD EVANS, Individually and
in his official capacity as Chief of SEPTA
Police Department

(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 DOUGHERTY and
LYNNE ZIRILLI,
       Appellants

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




Argued: February 11, 2002*

Before: ROTH, McKEE and BARRY, Circuit Judges .

(Filed October 15, 2002)

       Jules Epstein, Esquire
       Kairys, Rudovsky, Epstein,
        Messing & Rau, LLP
       924 Cherry Street, Suite 500
       Philadelphia, PA 19107

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

        Counsel for Appellants

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

        Counsel for Appellee

       Terry L. Fromson
       Women’s Law Project
       125 South 9th Street, Suite 300
       Philadelphia, PA 19107
_________________________________________________________________

* This matter was originally heard on February 12, 2002 before Judges
Mansmann, McKee, and Barry. Because Judge Mansmann died prior to
an opinion being rendered, the Panel was reconstituted to include Judge
Roth, and the appeal was submitted.

                                 2


       Sharyn A. Tejani
       Feminist Majority Foundation
       National Center for Women
        & Policing
       1600 Wilson Boulevard, Suite 801
       Arlington, VA 22209

        Counsel for Amici Curiae

OPINION OF THE COURT

BARRY, Circuit Judge.

In Lanning v. Southeastern Pennsylvania Transp. Auth.,
181 F.3d 478 (3d Cir. 1999) (hereafter "Lanning I"), we held
that "under the Civil Rights Act of 1991,1 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." 181 F.3d
at 481. We found that the District Court did not employ
this standard, which was implicit in Griggs v. Duke Power
Co., 401 U.S. 424 (1971), and incorporated by the Act, and,
thus, vacated the judgment of the District Court and
remanded the appeal for the Court to determine whether
the employer, the Southeastern Pennsylvania
Transportation Authority ("SEPTA"), had carried its burden
of establishing that its 1.5 mile run within twelve minutes
measures the minimum aerobic capacity necessary to
perform successfully the job of a SEPTA transit police
officer. Id. at 494. We left it to the discretion of the District
Court to allow the parties to expand the record in keeping
with our newly-announced standard.
Because we conclude that SEPTA produced more than
sufficient competent evidence to support the finding that a
pre-hire, pre-academy training aerobic capacity of 42.5
mL/kg/min measures the minimum qualifications
necessary for successful performance as a SEPTA transit
police officer and has, thus, justified the conceded
_________________________________________________________________

1. 42 U.S.C. S 2000e-2(k).

                                3


disparate impact on female candidates by showing business
necessity, we will affirm the judgment of the District Court
in favor of SEPTA. We have jurisdiction pursuant to 28
U.S.C. S 1291.2

We clearly do not write on a clean slate. The District
Court conducted a twelve-day bench trial in January of
1998 after which it rendered a 162-page opinion detailing
378 findings of fact and 107 conclusions of law. Lanning v.
Southeastern Transp. Auth., 1998 WL 341605 (E.D. Pa.
June 25, 1998). On appeal, we, too, rendered a lengthy
opinion with a lengthy dissent. To be sure, the majority
opinion spent much time explaining how the standard
announced therein came to be, but that opinion, and the
dissent, discussed much more, including why SEPTA’s
concern over public safety caused it to modify its hiring
requirements, the history of this litigation, and key pieces
of evidence. On remand, the District Court conducted a
five-day hearing, after which it rendered a 69-page decision
detailing yet another 153 findings of fact and 34
conclusions of law. Lanning v. SEPTA, 2000 WL 1790125
(E.D. Pa. Dec. 7, 2000).

So much has been written and so little remains for
determination that we do not believe it necessary to repeat
what has been said before or, as does the dissent here,
poke a hole here or there in one or more of the District
Court’s extensive findings of fact and conclusions of law.
There is, however, one undisputed fact which bears
repetition because it sets the stage for what is to follow: it
is undisputed that SEPTA management wanted to improve
the crime fighting ability of SEPTA’s force and the fitness of
its officers. As Judge Weis explained in Lanning I:

        Concerned about its inability to control crime on its
       property, SEPTA instituted a three-pronged attack on
_________________________________________________________________

2. This case was consolidated before the District Court with United States
v. Southeastern Pennsylvania Transportation Authority (D.C. Civ. No. 97-
cv1161). The United States filed a notice of appeal from the final
judgment now under review, with the appeal docketed at No. 01-1297.
On October 1, 2001, the United States moved to dismiss its appeal
pursuant to Fed. R. App. P. 42(b). That motion was granted on October
12, 2001.

                                4
       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.

181 F.3d at 494-95 (Weis, J., dissenting).

We also reiterate what we explicitly stated in Lanning I:
the business necessity standard takes public safety into
consideration. 181 F.3d at 490 n.16. We observed, in
Lanning I, that Congress viewed the "more liberal test for
business necessity" adopted in Wards Cove Packing Co.,
Inc. v. Atonio, 490 U.S. 642 (1989), as a significant
departure from Griggs and intended, when it enacted the
Civil Rights Act of 1991, to endorse the business necessity
standard enunciated in Griggs and not the Wards Cove

                                5


interpretation of that standard. We, thus, considered, in
Lanning I, only Griggs and its pre-Wards Cove progeny.
Nonetheless, we noted:

        [T]o the limited extent that the Supreme Court’s pre-
       Wards Cove jurisprudence instructs that the 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.

181 F.3d at 491 n.16.

It is against this backdrop that we assess the sole issue
we caused to be resolved on remand: whether or not SEPTA
has proven that its 42.5 mL/kg/min aerobic capacity
standard measures the minimum qualifications necessary
for the successful performance of the job of SEPTA transit
police officers. The District Court concluded that the
answer was "yes," and that any lesser standard"would
result in officers . . . who were a danger to themselves,
other officers, and the public at large, [and] unable to
effectively fight and deter crime." Lanning 2000 WL
1790125, at *28 (Conclusion # 32). In the course of our
concluding that the Court’s conclusion was correct, we
have reviewed the relevant findings of fact under the clearly
erroneous standard and the District Court’s conclusions of
law under the plenary review standard. Newark Branch,
NAACP v. City of Bayonne, 134 F.3d 113, 120 (3d Cir.
1998); Lanning I, 181 F.3d at 484-85.

We start by noting that when this case was last before
us, we expressed concerns as to certain aspects of the

                                6


statistical studies upon which the District Court relied, and
we "encourage[d] the District Court to take a critical look at
these studies, if necessary, on remand." 181 F.3d at 493
n.21. In its second memorandum opinion, the District
Court noted that it had "indeed taken a second critical look
at these studies as suggested and once again reaffirm[ed]
their validity consistent with its prior extensive 160 plus
page memorandum opinion." Lanning, 2000 WL 1790125,
at *1 n.1. Significantly, after the five-day hearing on
remand, the District Court made additional findings of fact
that bolster its conclusion. As the following brief discussion
demonstrates, it is evident that the District Court’s findings
regarding the studies in this case were not clearly
erroneous.

In Lanning I, we were concerned that "the absolute
number of arrests or ‘arrest rates’ [in certain studies did]
not necessarily correlate with successful job performance."
181 F.3d at 492 n.21. While we continue to believe that a
"SEPTA officer should generally attempt to control a
situation without having to make an arrest," id., the
District Court found, based upon its review of the extensive
body of evidence before it, that "lost arrests have a
significant impact on the public safety" in the SEPTA
transit system. Lanning, 2000 WL 1790125, at *26. This
finding indicates that arrests do, in fact, correlate to
successful performance as a SEPTA transit police officer.

We also questioned whether certain studies
overemphasized the role of aerobic capacity in making
arrests, and whether other studies placed too much
emphasis on arrest rates for "serious crimes" given that,
historically, the bulk of SEPTA arrests has been for lesser
crimes. While not all SEPTA arrests are aerobic contests,3
nor are they always effectuated to apprehend "serious"
criminals,4 the District Court found that "[a]n inability to
_________________________________________________________________

3. Although there is some dispute over the precise percentage of arrests
that have required substantial aerobic exertion, the evidence shows that,
at the very least, around one in ten arrests, or ten percent, have so
required.

4. Arrests for "serious crimes" have similarly accounted for around one
in ten arrests.

                                7


proficiently perform any . . . task[ ] would compromise the
effectiveness of the SEPTA transit police." 2000 WL
1790125, at *24 (emphasis added). In essence, the Court
concluded what, to us, is now evident: a SEPTA transit
police officer must be ready and able to apprehend not just
the numerous sedentary, petty criminals, but also the fleet-
footed few who, from time to time, wreak serious harm on
the people of Philadelphia.5

A final concern mentioned in Lanning I involved the
statistical methods relied upon in some of SEPTA’s studies.
We noted, for example, that a study on arrest rates seemed
to be based on "disproportionately large numbers of officers
with an aerobic capacity over 42 mL/kg/min" and stated
that, if the correlation coefficient of the study was low, the
study would "be subject to close review." 181 F.3d at 492-
93 n.21 (citing 29 C.F.R. S 1607.14(B)(6)). Upon further
review, we are satisfied that the correlation coefficient was
sufficiently high to be statistically significant.

We have also examined the other relevant studies in this
case for possible deficiencies and conclude that they were
sufficiently reliable and in keeping with sound principles of
statistical analysis. As scientists well know, it is not
uncommon for competent statisticians to interpret data in
different ways, sometimes reaching different results. While
we concede that there may be some room for disagreement
-- as there often is in the realm of statistical analysis -- the
District Court carefully considered the relevant studies and
credited them. Under the standard that governs our review,
we conclude that the District Court’s findings of fact were
not clearly erroneous.
And so we move more directly to the critical issue before
us -- the minimum qualifications necessary in terms of
_________________________________________________________________

5. The District Court also credited studies which indicate that once
SEPTA officers reach suspects, they often must engage in physical
struggles which require substantial aerobic capacity. The Court further
noted that SEPTA officers "must engage in at least one aerobic encounter
during the course of his or her duties every month, either as an
emergency assist or running backup." 2000 WL 1790125, at *24. These
findings support the conclusion that aerobic capacity is an important
factor in successfully making arrests.

                                8


aerobic capacity to successfully perform as a SEPTA transit
police officer. Neither the District Court nor the parties
have explicitly defined the key phrase "minimum
qualifications necessary," but a definition is implicit in the
parties’ respective arguments and the District Court’s
acceptance of that of SEPTA. SEPTA argued that the run
test measures the "minimum qualifications necessary"
because the relevant studies indicate that individuals who
fail the test will be much less likely to successfully execute
critical policing tasks. For example, the District Court
credited a study that evaluated the correlation between a
successful run time and performance on 12 job standards.
The study found that individuals who passed the run test
had a success rate on the job standards ranging from 70%
to 90%. The success rate of the individuals who failed the
run test ranged from 5% to 20%.6 The District Court found
that such a low rate of success was unacceptable for
employees who are regularly called upon to protect the
public. In so doing, the District Court implicitly defined
"minimum qualifications necessary" as meaning"likely to
be able to do the job."

Plaintiffs argued, however, that within the group that
failed the run test, significant numbers of individuals would
still be able to perform at least certain critical job tasks.
They argued that as long as some of those failing the run
test can do the job, the standard cannot be classified as a
"minimum." In essence, plaintiffs proposed that the phrase
_________________________________________________________________

6. The District Court cited numerous other studies that offer similar
results. In one such study, 80% of those passing SEPTA’s run test met
minimum job standards, while only 33% of those failing did. Another
study showed that 84% of those passing the test could carry out an
"emergency assist," while only 14% of the failing group were able to do
so. The consideration that the District Court gave to these studies lays
to rest plaintiffs’ claim that the cutoff time was merely the product of the
judgment of SEPTA experts. As we noted in Lanning I, a "business
necessity standard that wholly defers to an employer’s judgment as to
what is desirable in an employee . . . is completely inadequate." Id. at
489 (emphasis added). The factual record here, however, clearly
demonstrates that SEPTA experts set the run time cutoff at 12 minutes
for objective reasons, with the studies showing that the projected rate of
success of job applicants dropped off markedly for those who ran 1.5
miles in over 12 minutes.

                                9


"minimum qualifications necessary" means "some chance of
being able to do the job." Under this logic, even if those
failing the test had a 1% chance of successfully completing
critical job tasks, the test would be too stringent.

We are not saying, as our distinguished brother in
dissent suggests we are saying, that "more is better." While,
of course, a higher aerobic capacity will translate into
better field performance -- at least as to many job tasks
which entail physical capability -- to set an unnecessarily
high cutoff score would contravene Griggs. It would clearly
be unreasonable to require SEPTA applicants to score so
highly on the run test that their predicted rate of success
be 100%. It is perfectly reasonable, however, to demand a
chance of success that is better than 5% to 20%. 7 In sum,
SEPTA transit police officers and the public they serve
should not be required to engage in high-stakes gambling
when it comes to public safety and law enforcement. SEPTA
has demonstrated that the cutoff score it established
measures the minimum qualifications necessary for
successful performance as a SEPTA officer.

The dissent concedes that SEPTA has the right to
improve its workforce and does not suggest that that is not
being done. Instead, the dissent concentrates its efforts on
why, in its view, the 42.5 mL/kg/min aerobic capacity
cutoff score as an application requirement is wanting,
concluding that "[a]fter all has been said and done, . . . one
unassailable fact remains. The 42.5 mL/kg/min aerobic
capacity [cutoff] is not required of transit officers before or
after they begin policing." Dissent at 34. As for the "before,"
we reject without more the argument that applicants--
male and female -- should not be tested until they have
graduated from the police academy, perhaps two and one-
half years after they first applied to SEPTA; indeed, the
dissent recognizes but relegates to a footnote the increase
in SEPTA’s costs and the uncertainty in planning and
recruitment this would occasion. As for the "after," all
incumbents -- male and female -- are now required to take
a physical fitness test every six months, another step
_________________________________________________________________

7. Even in other studies where those failing the test had higher predicted
rates of success on job tasks, the rates were still only around 33%.

                                10



toward improving the workforce.8 In this connection, it
bears mention that SEPTA is unable to discipline
incumbents who do not pass the test only because of the
patrol officers’ union’s challenge, sustained by an
arbitrator. With the union’s blessing, however, SEPTA offers
financial incentives to those officers who do pass.
One final note. While it is undisputed that SEPTA’s 1.5
mile run test has a disparate impact on women, it is also
undisputed that, in addition to those women who could
pass the test without training, nearly all the women who
trained were able to pass after only a moderate amount of
training. It is not, we think, unreasonable to expect that
women -- and men -- who wish to become SEPTA transit
officers, and are committed to dealing with issues of public
safety on a day-to-day basis, would take this necessary
step. Moreover, we do not consider it unreasonable for
SEPTA to require applicants, who wish to train to meet the
job requirements, to do so before applying in order to
demonstrate their commitment to physical fitness. The poor
physical condition of SEPTA officers prior to 1989
demonstrates that not every officer is willing to make that
commitment once he or she is hired. In any event, the
multi-agency training which SEPTA candidates receive does
not provide sufficient physical fitness training to bring an
unqualified candidate up to the physical standard
requirements.

The judgment of the District Court will be affirmed. 9
_________________________________________________________________

8. Of course, yet another step in improving the performance of
incumbents would be to require a physical fitness test not only upon
application but also immediately prior to entry on duty.

9. We have considered the parties’ other assertions of error and find
them unavailing.
                                11


McKEE, Circuit Judge dissenting.

In Lanning v. Southeastern Pennsylvania Transp. Auth.,
181 F.3d 478 (3d Cir. 1999) (hereafter, "Lanning I"), we held
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." 181 F.3d
at 481. The Southeastern Pennsylvania Transportation
Authority ("SEPTA") requires all applicants for the position
of Transit Police Officer to be able to run 1.5 miles in twelve
minutes, which translates into an aerobic capacity of 42.5
mL/kg/min. Despite the numerous opinions that have been
written in this suit, and an involved and lengthy bench trial
that was followed by additional testimony on remand, I do
not believe SEPTA is any closer than when we started to
demonstrating that the pre-training 42.5 mL/kg/min cutoff
-- a standard that disqualifies 90% of female applicants
from even beginning training -- satisfies the business
necessity standard. Accordingly, I respectfully dissent from
the opinion of my colleagues.

I.

Before I explain why SEPTA has not met its burden and
why we should therefore reverse the District Court’s
decision on remand, see Lanning v. SEPTA, 2000 WL
1790125 (E.D. Pa. Dec. 7, 2000) (hereafter "Lanning II"), I
think it important to dispose of one concern at the outset.

My disagreement with my colleagues is not about public
safety or the importance of safeguarding SEPTA’S ridership.
No rational or informed person can seriously doubt the
importance of qualified police officers to a large urban
transit system. Yet, on remand, the District Court
expressed the following concern after summarizing much of
the evidence that had been offered in support of the 42.5
mL/kg/min aerobic capacity cutoff:

       Significant gains in apprehensions and deterrence such
       as those demonstrated here are to be encouraged and
       supported by the federal courts. The Court simply will
       not condone dilution of readily obtainable physical

                                12


       abilities standards that serve to protect the public
       safety in order to allow unfit candidates, whether they
       are male or female, to become SEPTA transit police
       officers.

Lanning II, 2000 WL at * 25 (E.D. Pa. Dec. 7, 2000).
Similarly, the Majority states: "SEPTA transit police officers
and the public they serve should not be required to engage
in high-stakes gambling when it comes to public safety and
law enforcement." Majority Op. at 10. I can not stress too
strongly that the issue is not now, and never has been,
whether SEPTA must jeopardize public safety in order to
eliminate the disparate impact that SEPTA concedes the
42.5 mL/kg/min standard visits upon female applicants.
Rather, the issue continues to be whether SEPTA can
justify that cutoff under the business necessity test that is
incorporated into Title VII by the 1991 Civil Rights Act.1
Since "the business necessity standard takes public safety
into consideration," Majority Op. at 5 (citing Lanning I, 181
F.3d at 478, 490) applying it here will not endanger the
public.

It is uncontested that plaintiffs have established a prima
facie case of job discrimination because the 42.5
mL/kg/min cutoff has a disparate impact on females
applying to be SEPTA police officers. Dothard v. Rawlinson,
433 U.S. 321, 329 (1977). However, that discrimination is
permissible if the aerobic capacity represented by that
cutoff is "job related for the position in question and
_________________________________________________________________

1. As the majority notes, in Lanning I, we held that the Civil Rights Act
of 1991, codified the Supreme Court’s holding in Griggs v. Duke Power
Co., 401 U.S. 424 (1971). Under that holding, the employer had the
burden of establishing that its "discriminatory cutoff score . . .
measure[s] the minimum qualifications necessary to perform
successfully the job in question." Lanning I , 181 F.3d at 489. We also
specifically held that studies demonstrating "that the higher an officer’s
aerobic capacity, the better the officer is able to perform the job," i.e.
that "more is better," have "no bearing on the appropriate cutoff to reflect
the minimal qualifications necessary to perform successfully the job in
question." Id. at 492. We noted that such a study "may suffice . . . in
only the rarest of cases where the exam tests for qualities that fairly
represent the totality of a job’s responsibilities." Id. at 493 n.23
(emphasis added).

                                13


consistent with business necessity. . . ." 42 U.S.C. S 2000e-
2(k). SEPTA may therefore justify its discriminatory cutoff
by demonstrating that anything less jeopardizes public
safety. We explained this in Lanning I. There, we stated:

       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.

Lanning I, 181 F.3d at 490. Accordingly, any suggestion
that "federal courts" are advocating that diminished public
safety is the social price that we must pay to eliminate
gender discrimination is as unfortunate as it is inaccurate
and misleading. Despite continuing protestations to the
contrary, SEPTA has simply not demonstrated the business
necessity of its cutoff though it has had several
opportunities to do so. The implication that changing
SEPTA’s cutoff would endanger the public is therefore
nothing more than the proverbial red herring. As I shall
discuss in greater detail below, the effect of SEPTA’s aerobic
capacity standard on public safety is purely conjectural.

Moreover, as I shall also explain, the objective evidence
on this record should weigh far more heavily in the balance
than the conjecture that SEPTA’s arguments rest upon.
That objective evidence consists of the job performance of a
female police applicant who was mistakenly hired although
she did not meet the aerobic cutoff when she applied,
SEPTA’s failure to require officers to meet the standard
when they first go on duty as police officers, and the fact
that incumbent police officers have regularly failed to meet
the 42.5 ml/kg/min cutoff with no demonstrable impact on
public safety. Given this record, SEPTA can not shield its
unnecessarily exclusionary job requirements from judicial
review by relying on a threat to public safety where none
has been demonstrated.

Moreover, even if SEPTA had demonstrated the necessary
correlation between public safety and the 42.5 mL/kg/min

                                14


cutoff, "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." Id. at 485 (quoting Albemarle Paper Co.
422 U.S. 405, 425 (1975)). In Lanning I, we suggested
several alternatives that could address SEPTA’s justifiable
concern about the fitness of its police force while mitigating
or eliminating the discriminatory impact of the 42.5
mL/kg/min cutoff.

       SEPTA could [for example]: 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 . . . that would
       exclude 80% of men as well as 80% of women through
       separate aerobic capacity cutoffs for the different sexes.

Lanning I, 181 F.3d at 490.

SEPTA currently uses the aerobic cutoff as an incentive
rather than a disqualifier for incumbent transit police as is
suggested by the first alternative. There is no evidence that
public safety has been compromised by doing that.
Therefore, I fail to see why (assuming that everything
SEPTA says about the necessity of the standard is true)
SEPTA’s objectives can’t be achieved by offering incentives
for applicants just as SEPTA now does for incumbent police
officers.

There is an even simpler and more effective option that
would also further SEPTA’s objective more than the current
method of using the aerobic cutoff. SEPTA could impose the
cutoff as a condition of graduating from the police academy
rather than as an application qualifier. The period between
application and actually becoming a transit police officer is
sometimes as long as two and one-half years. If this
performance standard is as important to the work of a
transit police officer as SEPTA claims, the quality of
SEPTA’s police force would only be enhanced, not

                                15


weakened, by requiring officers to meet it when they
graduate from the academy.

That was one of our suggestions and it is one of the
plaintiffs’ proposals. See Lanning I, 181 F.3d at 504. That
proposal is eminently reasonable, it has several benefits
over SEPTA’s current application process, and it is a
practice that other police forces use.2 In fact, the more vital
the 42.5 mL/kg/min cutoff is, the more logical it is to
enforce it upon graduation from the police academy rather
than when one applies a year or two earlier. Doing so would
have a less discriminatory impact because it would allow
females to complete the application process if they could
not run 1.5 miles in the required time, but it would require
them to train to the extent necessary to meet the 42.5
mL/kg/min cutoff before starting on duty. It would also be
more consistent with insuring that all officers satisfy the
standard that SEPTA claims to be the minimum necessary
for the public’s safety.3

The fact that SEPTA does not retest before a new recruit
begins patrolling should cause us to be very skeptical about
SEPTA’s claim that the 42.5 mL/kg/min cutoff is necessary
to public safety. That skepticism is reinforced by several
undisputed facts on this record.

Yet, on remand, the District Court never even mentioned
these options and it appears that SEPTA never attempted to
explain why these less discriminatory (and more effective)
alternatives would not adequately address any legitimate
concerns.
_________________________________________________________________

2. Cf. Brief of Amici Curiae at 13 (noting that in recognition of training
interval, some agencies, such as New York State Troopers, have different
fitness requirements for entrance into, and graduation from, the training
academy).

3. I realize that this would increase SEPTA’s costs and introduce a new
level of uncertainty in planning and recruiting because SEPTA would be
less certain of how many of its recruits will ultimately survive the
academy and become SEPTA officers. However, common sense suggests
that such a "washout" factor already exists because it is a fair
assumption that not everyone who begins training ultimately graduates
and accepts a position with SEPTA. These are considerations that the
District Court never factored into its analysis of business necessity.

                                16


II.

The District Court’s analysis never focused on the fact
that the 42.5 mL/kg/min cutoff is enforced when someone
applies for the position of a SEPTA police officer, not when
an offer of employment is extended or when an applicant
graduates from the police academy and actually goes on the
job. All of the studies the District Court relied upon purport
to correlate success in job-related tasks to fitness level at
the time of the task, not at some time prior to hiring and
training. However, an offer to hire may be extended as
much as two and one-half years after the aerobic running
test is administered and the 42.5 mL/kg/min cutoff
applied, and there is absolutely no retest before beginning
as a SEPTA officer. See Lanning v. Southeastern
Pennsylvania Transp. Auth., 1998 WL 341605 (E.D. Pa.
June 25, 1998), and Findings of Fact and Conclusions of
Law therein (hereafter "Initial FOF "),PP 150-151.
Accordingly, there is no way for SEPTA to know if even a
male incumbent police officer has the aerobic capacity
deemed so necessary to the job when he actually begins
patrolling. Common sense establishes that no matter how
quickly and enthusiastically an applicant may be able to
scamper one and one-half miles when initially tested, "ole
man time"4 may have reduced the applicant’s aerobic
output beneath the 42.5 mL/kg/min cutoff at the very
point that SEPTA claims it is necessary for public safety.

There has been no showing - and no finding by the
District Court - that fitness level at the time of application
is a reliable proxy for fitness level on the job over the
ensuing years. On the contrary, as the majority implicitly
acknowledges, being able to run 1.5 miles in 12 minutes
prior to training is neither a necessary nor a sufficient
condition for being able to run that fast (and consequently,
according to SEPTA’s theory, being able to perform various
police tasks) thereafter.

On the one hand, the majority concedes that "nearly all
the women who trained were able to pass after only a
moderate amount of training," Majority at 11, so the ability
_________________________________________________________________

4. Not to mention the possible intervening intake of pizzas, burgers, and
that extra helping of desert every now and then.

                                17


to pass without training is not a necessary prerequisite. On
the other hand, pre-hire fitness does not guarantee
continued fitness on the job. The failure to establish the
required nexus between fitness at the time of application
and fitness on the job is a major gap in SEPTA’s proof. My
colleagues in the Majority gloss over this gap noting that it
is "not unreasonable" to require women to train in advance,
"in order to demonstrate their commitment to physical
fitness." Majority at 11. However, it is undisputed that
SEPTA does not require applicants or incumbents to train
"in order to demonstrate their commitment to physical
fitness." There are two additional problems with the
Majority’s reliance on the relevance of applicants
demonstrating a commitment to fitness.

First, the District Court made no finding that applicants
who can run fast are more "committed" to physical fitness
(or even more likely to remain fit) than someone who may
exhibit greater endurance than required for the aerobic
cutoff, but not have the speed necessary to satisfy it.
Moreover, since running is only one of the physical
demands made of an applicant, focusing only on it may
ignore the commitment of an applicant who can do a
greater number of push-ups or sit-ups, or bench press
more weight than someone who can run 1.5 miles in 12
minutes.5

Second, since men are far more likely than women to be
able to pass the running test without training, this newly-
minted commitment rationale imposes an additional
discriminatory criterion -- viz, that women must possess a
demonstrated level of commitment not required of men.
Given the substantial physical advantage enjoyed by men,
a woman who runs 1.5 miles in just over 12 minutes may
thereby demonstrate more commitment to training and
fitness than a man who runs the course in just under 12
minutes or 12 minutes "flat." Yet, SEPTA enforces its cutoff
in a manner that would exclude the female in favor of the
male, despite the fact that the relative achievement level
_________________________________________________________________

5. The number of push-ups, and sit-ups an applicant can do is also
tested, as is the amount of weight that the applicant can bench press.

                                  18


may demonstrate a greater commitment to fitness on the
part of the female.6

III.

Although the requirement of running 1.5 miles in 12
minutes and the corresponding 42.5 mL/kg/min cutoff may
not appear that daunting a requirement for someone who
exercises regularly and is in fairly good condition, it is
nevertheless more than certain branches of the United
States military demand of incumbents.7 I can understand
and appreciate SEPTA’s argument that its zone system, and
its reliance on foot patrols explains why the 42.5
mL/kg/min cutoff is more demanding than the standard
set for New York City Police. Differences between what is
required of SEPTA police and New York City transit police
perhaps rebut the testimony of Former New York City
Transit Police Chief, Michael O’Connor, as to the need for
SEPTA’s aerobic standard. He led a significant reduction of
crime in New York City’s transit system. When he testified
before the District Court as an expert witness in this suit
he emphatically rejected the concept of comparing police
officers’ running ability with that of fleeing felons as a job
requirement. SEPTA had argued that its officers must have
an aerobic capacity at least equal to that of the
"perpetrator" population SEPTA officers may have to chase.
Chief O’Connor disagreed. He testified: "[h]ow fast you run
is not a measure of how good a cop you are. It takes a lot
more than just running fast to be a good cop." 8
_________________________________________________________________

6. The use of differing cutoffs, corresponding to the differing average
aerobic capacities of men and women, was one of the less discriminatory
alternatives we suggested in Lanning I. This alternative was ignored by
the District Court.

7. The United States Army requires males ages 22-26 to run 2 miles in
16.36 minutes; the Navy requires males ages 20-29 to run 1.5 miles in
13.45 minutes and; the Marines require males ages 17-26 to run 3 miles
in 28 minutes. See Gordon Strong, Descriptive Comparisons of United
States Military Physical Fitness Programs, 2 Sport J. (1999), http://
www.thesportjournal.org/VOL2NO2/STRONG.HTM.

8. See J.A., Vol. III at A-725.

                                  19
SEPTA’s own experience confirms this. Crime has been
reduced on SEPTA facilities even though SEPTA does not
require incumbent officers to achieve the 42.5 ml/kg/min
cutoff. This undermines SEPTA’s assertion about the
relationship between the aerobic cutoff and effective
policing, and it corroborates Chief O’Connor’s view of the
cutoff.

Although differences between New York City and
Philadelphia may cast doubt on the Chief ’s attempt to
assess the value of applying this cutoff to the Philadelphia
transit system, it does not explain why SEPTA insists upon
a more demanding standard than is required of young
people training for the Amy, Navy or Marines. Yet, SEPTA
argues that its standard is the minimum necessary for
public safety, and that it is necessary to screen out
applicants who fail to meet that standard without regard to
whether the standard will be attained after they are hired
and without regard to whether incumbent police officers
can meet it.

IV.

SEPTA’s insistence that the 42.5 mL/kg/min cutoff
satisfies the business necessity test is undermined by the
fact that it does not require its incumbent police officers to
meet that standard. Yet, there is nothing to suggest that
public safety has been jeopardized. SEPTA first
administered a running test in 1991. "SEPTA’s own internal
memoranda document that incumbent transit officers of all
ranks have failed SEPTA’s physical fitness test . . . ," Initial
FOF P 242, since SEPTA began testing.

One of plaintiff ’s trial exhibits purports to show that
62.20% of incumbent officers have failed the aerobic
capacity test since it was first administered in 1991. Initial
FOF P 245 (citing Plaintiff ’s Exhibit 106). The District Court
discounted the probative value of that evidence however,
because an individual officer would have been counted "a
number of times if this officer failed the test a number of
times." Id. The Court concluded, "[t]hus, this evidence is
not entitled to much weight." Id.

                                20


Nevertheless, even assuming that the 62.20% failure rate
is somewhat inflated because it fails to adjust for multiple
failures of individual incumbents, and even assuming that
the failure rate has decreased with time, nothing on this
record suggests the dramatic turn around one would have
a right to expect if meeting that standard is so necessary to
public safety, and SEPTA has the burden of proof here, not
plaintiffs.

It is uncontested that, despite SEPTA’s claim that officers
who can not meet the 42.5 mL/kg/min standard endanger
public safety, SEPTA has promoted officers who failed the
running test, and given commendations to others who
failed a component of that test. See Initial FOF 256-259. It
is also uncontested that SEPTA has never suspended,
reassigned, disciplined or demoted any officer "for failing to
perform the physical requirements of the job." Initial FOF
259.9 It has also promoted officers who could not meet the
standard. SEPTA’s policy of promoting candidates who fail
to demonstrate a 42.5 mL/kg/min aerobic capacity is
perplexing given the purported importance of that
performance criteria. The District Court noted:

       SEPTA has promoted incumbent officers who have
       failed some or all of the components of the physical
       fitness test at any time. Since July 1994, the Chief of
       SEPTA Transit Police Department has had the
       authority to remove candidates from promotional lists
       for failing to achieve their interim fitness goals. Despite
_________________________________________________________________

9. Although the District Court is certainly correct that an employer has
the right to improve its workforce, and is not bound by the standard of
its incumbents, a claim that a highly discriminatory standard that is not
required of incumbent police officers is the minimum necessary to
satisfactory job performance should be met with skepticism.

Cf. Scott v. City of Anniston, 597 F.2d 897 (5th Cir. 1979) ("Validation,
in general, requires a demonstration that ‘the qualifying tests are
appropriate for the selection of qualified applicants for the job in
question.’ ") (quoting Washington v. Davis , 426 U.S. 229 (1976)). In Scott,
the Fifth Circuit observed that the "evidence casts doubt on the validity
of the tests" where some individuals "who had satisfactorily performed
jobs were demoted after [failing] the written tests and others "who had
failed written tests performed satisfactorily when they were promoted
after passing a performance test." Id. at 902.

                                21


       the authority to remove officers from the promotional
       lists, no SEPTA officer has ever been removed from a
       promotional list for failure to pass physical fitness
       testing for incumbents.

Initial FOF 256. The court attempted to rationalize this
apparent contradiction and credit SEPTA with making some
effort to consider aerobic capacity when making promotions
by noting: "Nevertheless, only ten officers who have failed
their physical fitness tests have ever been promoted." Id.
However, as I have already noted, SEPTA has the burden of
proving "necessity." Accordingly, the fact that a relatively
small number of officers have been promoted while failing
to satisfy the cutoff is not nearly as probative as the fact
that 10 officers who failed were promoted with no resulting
impact on public safety. After all, SEPTA obviously believed
that those 10 officers could do their jobs effectively, and
adequately protect the public or it would not have promoted
any of them.

The District Court explained that SEPTA’s failure to
discipline transit police who could not meet the 42.5
mL/kg/min standard was due to a union challenge to
management’s unilateral imposition of that requirement on
incumbent officers. The union’s position was sustained by
an arbitrator. See Lanning II, 2000 WL 1790125 at *6.
Management responded by offering monetary rewards
whenever an incumbent officer "passed" the running test,
and by offering to pay for gym memberships to help
incumbent officers train to the level necessary to meet the
42.5 mL/kg/min cutoff. Id. Although the union’s objections
and the resulting arbitration explain why no incumbent
was fired for not meeting that cutoff, they don’t explain why
SEPTA has commended and promoted officers who are
purportedly so physically unfit that they are unable to
perform the minimum job tasks that are now supposed to
be so necessary to public safety. It also does not explain
why SEPTA could not offer female applicants who do not
meet that cutoff the same support it offers male incumbent
transit police officers.

The District Court concluded that:

       The experiences SEPTA had with its incumbent officers
       serves to further illustrate the importance of requiring

                                22


       incoming officers to meet certain minimum fitness
       standards, as SEPTA has much less ability to influence
       its force once they become members of the collective
       bargaining unit.

Lanning II, 2000 WL at * 6 n.5. Of course, this does not
explain why SEPTA does not retest applicants before
offering them a position, and it does not even begin to show
why the 42.5 mL/kg/min threshold is the minimum
necessary for public safety.

We are reminded that SEPTA initiated the policy of
retesting incumbent police officers every six months in
1991, but the manner in which the "policy" is administered
undermines SEPTA’s claim of public safety more than it
supports it. The District Court concluded that "[d]espite
this policy, there was evidence introduced at trial that
incumbents are not always retested every six months."
Lanning II. 2000 WL at * 6 (E.D. Pa. Dec. 7, 2000). Since
one’s job status is not affected by the outcome of the
retests, those examinations are merely an adjunct to the
system of rewards and encouragement employed for
incumbent officers. As I noted above, SEPTA has not
explained why it can not create a similar mechanism of
reward and encouragement for applicants who are
otherwise qualified to become police officers but can not
initially demonstrate an aerobic capacity of 42.5
mL/kg/min.

We are told of how crime in and around SEPTA property
has been significantly reduced despite the apparent
inability of many transit officers to meet the cutoff, and
SEPTA’s inability or unwillingness to enforce it.
Accordingly, I can only conclude that factors other than the
42.5 mL/kg/min cutoff are responsible for reducing the
levels of crime. Crediting the 42.5 mL/kg/min cutoff with
reducing crime while not requiring incumbents to meet it
totally ignores the other steps SEPTA took that explain the
reduction in crime. For example:

       SEPTA initiated a complete overhaul of   the police
       department . . . . to make the subways   on the SEPTA
       system the "safest place in the city."   This overhaul
       included the announcement that transit   police were to

                                23


       be primarily dedicated to the subway and were not to
       serve as guards to protect personal or physical
       property at depots. [And] SEPTA increased the number
       of officers from 96 to nearly 200 and introduced a
       "zone concept" for the area they patrolled.

Lanning II, 2000 WL 1790125 at 1.10

Given the tenuous relationship between aerobic capacity
and public safety on this record, it is perhaps not
surprising that incumbent officers with an aerobic capacity
too low to apply for the job had an arrest rate that was
virtually identical to another group of officers who satisfied
the 42.5 mL/kg/min cutoff. In Lanning I, we noted that
"officers at less than 37 mL/kg/min had average arrests of
13.6 compared to officers with at least a 48 mL/kg/min
level who had average arrests of 13.9." 181 F.3d at 493
n.21.

V.

Ironically, serendipity has furnished us with a model that
we should not so readily dismiss in assessing the business
necessity of the 42.5 mL/kg/min cutoff. At the outset I
alluded to an instance where SEPTA mistakenly hired a
female applicant who did not meet the aerobic cutoff. That
officer was hired because of a clerical error. SEPTA
concedes that she did not meet the 42.5 mL/kg/min cutoff
when she applied and was therefore not fit to even be
considered for the position of SEPTA Police Officer under
SEPTA’s discriminatory application requirement. That
officer’s performance on a job that she was not"qualified"
to even apply for under the 42.5 mL/kg/min aerobic cutoff
is significant indeed. Her presence patrolling SEPTA
_________________________________________________________________

10. See FOF P 26 ("In response to these problems, SEPTA initiated a
complete overhaul of the police department . . . . This overhaul included
the announcement that transit police were . . . not to serve as guards to
protect personal or physical property at depots. SEPTA increased the
number of officers from 96 to nearly 200 and introduced a ‘zone concept’
for the area they patrolled."). Cf. Brief of Amici Curiae at 14-15 (citing
research demonstrating that decreasing crime on transit systems is a
function of controlling environmental factors and police presence, not
aerobic capacity).
                                24


property has apparently not endangered the citizens of
Philadelphia at all. On the contrary, as the District Court
originally found:

       Officer Thomas was hired in 1991 despite the fact that
       she did not complete the 1.5 mile run in 12 minutes
       and failed the bench press, sit-up and push-up
       components of SEPTA’s physical fitness test for
       applicants. Officer Thomas has gone on to become a
       decorated officer who has repeatedly been nominated
       for awards such as Officer of the Year and Officer of
       the Quarter. In fact, SEPTA has commended Officer
       Thomas for her outstanding performance as a police
       officer. Moreover, Officer Thomas serves as one of
       SEPTA’s two defensive tactics instructors.11

Lanning v. Southeastern Pennsylvania Transportation
Authority, 1998 WL 341605 at * 24, FOF 261 (E.D. Pa.
June 25, 1998).

I realize, of course, that the job experience of a single
officer is not statistically significant in evaluating the
relevance of a standard that is supposed to apply to an
entire applicant pool and (at least in theory) an entire police
force. However, I do not offer this officer’s job performance
to counter the statistical record. Rather, I submit that the
officer’s performance is highly relevant to measuring the
necessity of the aerobic cutoff in the context of this entire
record. Her performance is consistent with other evidence
that undermines SEPTA’s justification for gender
discrimination.

One of SEPTA’s experts, Dr. Bernard Siskin, admitted
that correlating arrests and aerobic capacity was not a good
_________________________________________________________________

11. Officer Thomas’ prowess as a defensive tactics instructor despite her
subpar aerobic capacity confirms what common sense would only
suggest. The most effective police officers may be those who are skilled
enough to arrest someone without engaging in the physical struggle that
SEPTA argues partly necessitates an aerobic cutoff at 42.5 mL/kg/min
Indeed, one can not help but be concerned about the idea of a police
officer armed with incapacitating chemical spray and a police baton,
allowing him/herself to be drawn into a protracted struggle with an
arrestee who could grab the officer’s gun and use it against the officer or
anyone else.

                                25


way to predict the quality of an officer’s policing. In fact, a
study found that individuals with an aerobic capacity of 33
mL/kg/min made more arrests for serious crimes than
individuals with an aerobic capacity of 44 and 46
mL/kg/min. J.A., Vol XII at 1837. Accordingly, I question
the District Court’s conclusion that "aerobic capacity is an
important factor in successfully making arrests." Maj. Op.
at 8 n. 5. If it is, some of the same officers that SEPTA has
promoted and awarded and given commendations to should
not be patrolling Philadelphia’s transit system.

VI.

The District Court’s approval of the 42.5 mL/kg/min
standard in large measure rests upon its acceptance of Dr.
Siskin’s expert opinion. See Lanning II, 2000 WL at *7 to *8.
Although Dr. Siskin did testify that higher aerobic capacity
equated with higher arrests, he did not purport to correlate
the 42.5 mL/kg/min cutoff with any satisfactory minimum
level of policing. We explained this in Lanning I where we
stated:

       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. This result contravenes Griggs and
       demonstrates why, under Griggs, a discriminatory
       cutoff score must be shown to measure the minimum
       qualifications necessary to perform successfully the job
       in question.

181 F.3d at 493 (footnote omitted). Yet, the inquiry has
advanced no further following remand. I still can not help

                                26


but conclude that all of the additional testimony that the
District Court heard after Lanning I, did nothing more than
establish that "more is better." Yet, the majority insists that
there is adequate support for this cutoff now. My colleagues
argue:

       While, of course, a higher aerobic capacity will
       translate into better field performance -- at least as to
       many job tasks which entail physical capability-- to
       set an unnecessarily high cutoff score would
       contravene Griggs. It would clearly be unreasonable to
       require SEPTA applicants to score so highly on the run
       test that their predicted rate of success be 100%. It is
       perfectly reasonable, however, to demand a chance of
       success that is better than 5% to 20%.

Majority Op. at 10.

"Reasonable" though it may be, the question remains,
what cutoff is necessary to ensure public safety and
effective policing? Where between the purportedly
reasonable level of "5% to 20%" the Majority approves of,
and the unreasonable level of 100% it disapproves of, does
Griggs allow SEPTA to draw a line? Furthermore, why is 5%
to 20% reasonable, and why is 100% unreasonable? The
questions remain unanswered.

The inquiry would be furthered if SEPTA could point to
some objective basis for defining a cutoff or aerobic
threshold. However, the 42.5 mL/kg/min threshold seems
to have been plucked from the air by Dr. Davis after SEPTA
contacted him and asked him to assist in improving the
quality of transit police officers. Dr. Davis testified that he
initially sought the advice of twenty experienced SEPTA
officers (designated as "subject matter experts" or "SMEs")
to determine the level of physical exertion they thought was
required of transit police officers. The SMEs told him that
they thought a SEPTA officer should be able to run a mile
in full gear in 11.78 minutes. However, Dr. Davis rejected
that cutoff because it was too low. He believed nearly
anyone in the general public could satisfy that standard.
Lanning I., 181 F.3d at 482.12 He rejected a standard of 50
_________________________________________________________________

12. The District Court explained that incumbent officers were older and
had a vested interest in establishing a standard that they could meet.

                                27


mL/kg/min because it was too high. It would have had a
"Draconian effect on women applicants." Id . n.3. He
therefore apparently decided upon a cutoff of 42.5
mL/kg/min because it was not too high, it was not too low;
it was just right. But under Griggs, it is not permissible to
select a discriminatory employment test in the same
manner that Goldilocks chooses which bed to sleep in or
which bowl of porridge to eat.

The 42.5 cutoff was not selected based upon the
requirements of the job. Rather, it was based upon the
expert’s (apparently mistaken) conclusion that that level
would not exclude women. See FOF P 31. Cf. Green, 73 F.
Supp. 2d at 200 (describing cutoff score chosen to have less
impact than initially selected score as "arbitrarily
established"). At the very least, he concluded that the
resulting rate of exclusion was acceptable (i.e."reasonable")
because it did not have a "Draconian" impact.

In Lanning I, we cautioned:

       The danger of allowing an employer to carry its burden
       by relying simply upon an expert’s invalidated
       judgment as to an appropriate cutoff score in a testing
       device is illustrated by this case.

181 F.3d at 492 n.19. Accepting the 42.5 mL/kg/min cutoff
as being the minimum level consistent with business
necessity on this record
       disregards the teachings of Griggs, Albemarle and
       Dothard in which the [Supreme] Court made clear that
       judgment alone is insufficient to validate an employer’s
       discriminatory practices. . . . . [N]owhere 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.
_________________________________________________________________

Accordingly, "in Dr. Henderson’s opinion it is risky to use incumbent
data as a benchmark for establishing entry-level selection devices." 2000
WL 1790125 at *9. That is certainly a logical explanation of why the
lower cutoff recommended by the SMEs was rejected. It does not help us
to understand how the 42.5 mL/kg/min cutoff was decided upon.

                                28


Id., at 491-2. The only explanation of the source of this
standard comes from Dr. Davis’ testimony during the first
trial. It is not reassuring. There, the following exchange
occurred between Dr. Davis and counsel for the plaintiffs:

       Q. Isn’t it correct that you and Dr. Henderson used
       your own intellectual creativity in coming up with your
       measures of success?

       A. A nice way of saying it, yes.

J.A. Vol. III at A.-639 (emphasis added). None of the post
hoc justifications for the cutoff suggest that it rests on any
firmer ground than that response suggests.

SEPTA made no effort on remand to empirically establish
the minimum aerobic capacity necessary to perform as a
transit officer. It merely attempted to justify the 42.5 figure
arbitrarily selected by Dr. Davis as a "compromise" between
a "Draconian" standard that no woman could satisfy on the
one hand, and a "Lilliputian" one that anyone could satisfy
on the other. As Appellants point out, "[r]ather than
attempt to objectively determine a minimum cut score, or
whether any was justified . . . [SEPTA’s experts] merely
sought to measure the effect of the 42.5 standard
previously selected by Dr. Davis." Brief of Appellants at 41.

The inquiry was further handicapped on remand by the
District Court’s refusal to reexamine its original findings. In
Lanning I, we cited numerous concerns with the various
studies that were relied upon to uphold the cutoff, and
expressed concern with the District Court’s refusal to
consider the undisputed evidence that a number of
incumbent officers were performing satisfactorily even
though they could not meet the 42.5 mL/kg/min standard.
We noted:

       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

                                29


       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.

181 F.3d at 494 n.24. We allowed the District Court to
exercise its own discretion on remand as to whether to
consider additional evidence regarding the necessity of the
cutoff. We also noted our concern regarding the court’s
failure to consider evidence that undermined SEPTA’s claim
of business necessity.

Nevertheless, on remand, the District Court proclaimed
"[f]rom the outset" that it "would not disturb its prior
factual findings in this case," although it did allow further
development of the record. In other words, it was willing to
accept additional testimony to support its conclusion, but
was not willing to reexamine the decision that we reversed
in light of any new evidence offered on remand. The District
Court correctly noted that "the sole question to be resolved
[on remand] . . . is whether or not SEPTA has proven that
its 42.5 mL/kg/min aerobic capacity standard is the
minimum necessary for the successful performance of the
job of SEPTA transit police officer." However, it then stated
that the evidence at the first trial, both separately and in
combination with the evidence adduced on remand, clearly
met this test.13

The District Court based its conclusion that "any
standard less than 42.5 mL/kg/min would result in officers
. . . who were a danger to themselves, other officers, and
the public at large, [and] who were unable to effectively
fight and deter crime"14 on the following:

        Dr. Davis’ calculations of the aerobic capacity
       required to perform essential tasks; the Siskin arrest
       studies, including the analysis of performance
       differences between those officers always at 42.5
       versus those never at 42.5; Dr. Moffatt’s initial study
       on work output decrements associated with aerobic
_________________________________________________________________

13. See Lanning II, Conclusions of Law (hereafter "COL") P 4.

14. COL P 32.

                                30


       capacities below SEPTA’s cutpoint; and SEPTA’s most
       recent studies [by Drs. Davis and Henderson, which
       taken together] more than provides an appropriate
       empirical basis for demonstrating that [SEPTA’s]
       cutpoint is already set at the minimum.

COL P 31.15

Whether the analyses and studies provided by SEPTA’s
experts are sufficient to support this finding turns on
whether they were reasonably calculated to measure
minimum requirements, i.e., whether they fairly
corresponded to actual job requirements and whether they
fairly determined minimum performance standards for
those requirements.16 In assessing this, we must remember
_________________________________________________________________

15. Two other conclusions of particular import are that the evidence
"clearly demonstrates that 42.5 is the minimum aerobic capacity
necessary . . . given the abysmal success rate on critical job tasks of
those that failed . . . when compared to those that passed . . . ." and that
"[t]he testimony and studies of Drs. Davis and Henderson conclusively
demonstrate that . . . 42.5 mL/kg/min is the minimum required . . . ."
COL PP 9-10.

However, as we observed in Lanning I,

       [i]t is unlikely that such a study could validate rankhiring 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, when 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.

Id. 181 F.3d at 493 n.23.

16. This standard is in accordance with Congress’s restoration of the
pre-Wards Cove conception of "business necessity" in which the
employer is required to justify not only the legitimacy of the ends, but
also the necessity of the means. More specifically, the two-part standard
follows directly from the Supreme Court’s holdings in Albemarle Paper
Co. v. Moody, 422 U.S. at 431 (holding that"discriminatory tests are
impermissible unless shown, by professionally acceptable methods, to be
‘predictive of or significantly correlated with important elements of work
behavior which are relevant to the job . . . for which candidates are being

                                31


that the employer, SEPTA, has the burden of proof as a
matter of express congressional policy, and that that policy
is based upon a recognition of the very real social harm
resulting from the disparity that the employer must justify.17
Consequently, the federal courts have a heightened
responsibility to scrutinize the employer’s proffered
justification.18

Finally, the Equal Employment Opportunity
Commission’s Guidelines also call for heightened scrutiny
where there is a severe disparate impact, low statistical
correlation, or over-emphasis on limited aspects of job
performance. Each of these are present here. See 29 C.F.R.
S 1607.14B(6). The District Court’s failure to heed those
_________________________________________________________________

evaluated’ ") (emphasis added) and Dothard 433 U.S. at 332 (indicating
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")
(emphasis in original). See also Griggs, 401 U.S. at 432 (stating that "any
given requirement must have a manifest relationship to the employment
in question").

17. See Pub. L. 102-166 S 3(4) (1991) (Civil Rights Act was passed "to
respond to recent decisions of the Supreme Court by expanding the
scope of relevant civil rights statutes in order to provide adequate
protection to victims of discrimination").

Cf. Griggs, 401 U.S. at 431 (holding that Title VII requires "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"); Lanning I, 181 F.3d at 489 ("[O]nly by
requiring employers to demonstrate that their discriminatory cutoff score
measures the minimum qualifications necessary . . . 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.").

18. Cf. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (applying
"heightened" or "intermediate" scrutiny to peremptory strikes based on
sex); Clark v. Jeter, 486 U.S. 456, 460 (1988) (observing that
"intermediate scrutiny . . . generally has been applied to discriminatory
classifications based on sex") (citing Mississippi University for Women v.
Hogan, 458 U.S. 718, 723-24 and n. 9 (1982); Mills v. Habluetzel, 456
U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Mathews
v. Lucas, 427 U.S. 495 (1976)).

                                32


Guidelines, or to require that SEPTA’s studies conform to
specific validation criteria, provides an independent
justification for reversing the District Court. 19
_________________________________________________________________

19. The District Court found that, in developing its physical abilities
testing, SEPTA’s expert had "applie[d] criterion-related, construct and
content validation strategies." FOF P 15. However, it is clear from the
record that no real attempt was made to establish either criterion or
construct validity for SEPTA’s test because no empirical data was
submitted to show the required correlation between tested running times
and ultimate job success. The only attempt to establish a correlation to
actual job performance was an arrest analysis prepared by Dr. Siskin.
That analysis neither encompassed a representative spectrum of SEPTA
transit officer job duties nor evidenced any unsatisfactory performance
by those officers failing to meet the cutoff. Compare, e.g., Guardians
Association of New York City Police Dept., Inc. v. Civil Service
Commission, 630 F.2d 79, 92 (2d Cir. 1980) (construct validation
requires criterion-related study, which in turn requires "a demonstration
from empirical data that the test successfully predicts job performance")
(citing EEOC Guidelines); Berkman v. City of New York, 705 F.2d 584,
588 (2d Cir. 1983) (rejecting proffered justification of discriminatory
selection procedure where city "failed to produce. . . [inter alia]
‘empirical data demonstrating that the selection procedure [was]
predictive of or significantly correlated with important elements of job
performance’ . . . (called ‘criterion validation’)"); Williams v. Ford Motor
Co., 187 F.3d 533, 539-41 (6th Cir. 1999) (criterion studies examine
"whether performance on [a] test adequately correlates with performance
on the job"); United States v. City of Chicago, 573 F.2d 416, 426 n.10,
427 (7th Cir. 1978) (fire department was required to show that
promotional examinations were "predictive of successful performance in
the jobs being tested for"; where there was "no attempt to determine
from a job analysis what traits are necessary for job performance", tests
at issue "fail[ed] to demonstrate either criterion validity or construct
validity because they fail[ed] to predict performance . . . .") (citing EEOC
Guidelines); Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 669
(7th Cir. 1996) (test invalid where there was no correlation between
performance on challenged test and performance in job for which test
was given, and little or no support for validity of test in predicting core
areas of job performance); Firefighters Institute For Racial Equality v.
United States, 549 F.2d 506, 510-11 (8th Cir. 1977) ("Criterion-related
studies involve the correlation of job performance with success on an
examination.").

                                33


VII.

Given all that I have set forth, I do not think there is any
need to dwell on the specifics of the various statistical
studies or methodologies that have been summoned to
support the 42.5 mL/kg/min cutoff. After all has been said
and done, after all the studies have been tabulated, all of
the regression analyses analyzed, and all of the numbers
fed into all of the number-crunching software on all of the
computers, on all of the experts’ desks; one unassailable
fact remains. The 42.5 mL/kg/min aerobic capacity is not
required of transit officers before or after they begin
policing. Rather, it is used to disqualify applicants even
though the application may be submitted as much as two
and one-half years before graduation from the police
academy and employment as a police officer. Moreover, as
I have noted at length above, once officers actually begin
protecting SEPTA’s riders and property, they do not have to
demonstrate or maintain any minimum aerobic capacity.
Yet, SEPTA insists upon arguing that this aerobic cutoff
has a very precise, demonstrable, correlation to public
safety, and that it therefore supports the gender
discrimination that SEPTA admits results from it.

Even though I do not think it necessary to attempt a
statistical exegesis to illustrate why SEPTA has not
demonstrated a business necessity for using the cutoff as
an application requirement, I can not conclude without
commenting on one particularly fascinating (and perhaps
illuminating) study that SEPTA commissioned to support
the 42.5 mL/kg/min cutoff. Although my colleagues
criticize an analysis that "poke[s] a hole here or there in
one or more of the District Court’s extensive findings of fact
and conclusions of law[,]" Majority Op. at 4, I can not allow
the sheer extent of the District Court’s opinion to substitute
for the proof required under Griggs. Accordingly, I must
take one specific "poke" that I believe exposes the hole that
SEPTA’s business justification should have fallen through.

As noted above, SEPTA wanted to determine the aerobic
capacity of "perpetrators" that transit police might have to
pursue in order to determine the validity of the 42.5
mL/kg/min aerobic cutoff. As part of its inquiry it
attempted to measure the aerobic output necessary to

                                34


apprehend the average perpetrator. Of course, any good
study begins with a representative sample, and the
perpetrator study was no exception. Accordingly, Dr. Davis
recruited a group of 31 subjects in order to get an idea of
the aerobic capacity necessary for transit police officers to
chase and apprehend them. However, there was one little
problem with the study. It seems that Dr. Davis recruited
his subjects at the University of Maryland track while the
University’s NCAA Division I track team was there.

The resulting "sample" contained 9 University of
Maryland track "stars," 10 high school track"stars," 2
other college athletes, and 2 high school running backs
who had been accepted to play football at major colleges.20
After plaintiffs’ counsel complained about the skewed
sample, the results for the 9 members of the University of
Maryland track team were factored out, and the results
were analyzed without including their times. This reduced
the sample to 22 subjects of whom "only" 14 (a mere 64%)
were trained athletes, and four were nonathletes. 21
Moreover, the high school runners were not your average
high school "track star." The group remaining after
"correcting" for the members of the University of Maryland
track team included high school runners who were
"winners of regional, state and sometimes national races."
J.A. IV at A-916 (emphasis added). Dr. Landy characterized
their times as "staggering." His reaction to suggesting that
the aerobic performance of such a group represented the
_________________________________________________________________

20. It may stretch the limits of judicial notice, but I would ask the
Majority to accept as fact that major college running backs are generally
not noted for an absence of speed, quickness, or aerobic capacity.

21. The plaintiffs were unable to get any information about the
remaining four members of the group. Dr. Landy, one of plaintiffs’
experts testified about the information he was able to gather pertaining
to the 22 subjects who had been contacted.

       [W]e know that of the 22, 10 are high school track members but not
       just track members as if they just wander out every afternoon and
       run a little bit. These 10 are acknowledged track stars. . . .
J.A. Vol. IV at A-917. He further explained that one of the two football
players "has been recruited by the University of Georgia and will go
there. He is a running back and a linebacker and a defensive end." Id.

                                35


population that SEPTA police might have to chase was
appropriate. He stated: "[i]t just stretches anything that I
could imagine, to imagine that 22 of 31 SEPTA perpetrators
are world class athletes." Id. at A-917.

Although this is not your usual "representative sample,"
it was representative enough to form part of the
justification for the 42.5 mL/kg/min cutoff. Incredibly, the
only justification Dr. Davis offered for basing his study on
such an athletically talented group of trained athletes was
that athletes are part of the general population and
therefore part of the population that uses SEPTA. See
Appellants’ Br. at 38.22

It is difficult to imagine a more graphic demonstration of
what can result when studies seek to justify a standard
rather than objectively define one. Yet, that is what
happened here.23 Of course, this, by itself, is not fatal to the
42.5 mL/kg/min cutoff. It is, however, illustrative of the
concern we expressed in Lanning I, and it is also illustrative
of why the current cutoff, though perhaps "reasonable" in
the eyes of some, can not be seen as "necessary" when
viewed through the lens of Title VII.

VIII.

Prior to today’s decision, it was established in this
Circuit, as it remains established in others, that a job
_________________________________________________________________

22. Though the record does not include any objective study of the
ridership of SEPTA, I have resided in Philadelphia for over a quarter of
a century, and I have serious doubts that approximately 64% of the
people using public transportation in Philadelphia so closely resemble
regional and national track stars, and running backs from major
colleges. Yet, that is the justification that is offered for considering this
study.

23. I do not doubt that Doctors Davis and Henderson are very learned
experts who are knowledgeable and respected in their respective fields.
I am nevertheless troubled by their propensity or willingness to include
college athletes -- indeed, superior athletes from Division I schools -- in
a study of aerobic capacity of the average perpetrator using public
transportation in Philadelphia. I am even more troubled by the extent to
which it suggests the defensive nature of SEPTA’s attempt to justify its
cutoff, and the District Court’s acceptance of it.

                                36


requirement that has a disparate impact based upon
gender could only be upheld if the relationship between the
discriminatory requirement was so closely related to the
essential of a given job that it could be justified as a
business necessity. Today, in upholding a discriminatory
application process based only upon a colorable claim of
business necessity, we retreat from that standard while
purporting to apply it. Yet, in enacting the Civil Rights Act
of 1991, I believe Congress meant exactly what it said;
discrimination in the name of "business necessity" must
truly be necessary. No such necessity has been established
here.

SEPTA can not "have its cake and eat it too." The aerobic
cutoff is either so vital to public safety that it is a business
necessity; in which case, SEPTA can not require it only of
applicants without showing that the failure to require it of
incumbents has had a negative impact on their
performance as police officers. If, on the other hand, the
relationship between public safety and the 42.5 mL/kg/min
cutoff is as tenuous as suggested by SEPTA’s failure to
consider it when making job offers, promotions or
commendations, then SEPTA can not continue to use
justifiable concerns about public safety as a boogeyman to
support the admittedly discriminatory cutoff it uses to
screen applicants. Accordingly, I must respectfully dissent
from the decision of my colleagues.

A True Copy:
Teste:

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

                                37
