Last week, a federal district court in Connecticut held that the Department of Corrections violated federal law in instituting a discriminatory physical fitness test that created a disparate impact on women.  It also found that the test was not job-related or necessary.  

In doing so, the court granted summary judgment to the employee and the class of similarly situated job applicants. 

In Easterling v. State of Connecticut (download here), a federal district court held that a requirement that women candidates for promotion be required to complete a 1.5 mile run test was not a necessary job requirement.  

This "disparate impact" case may have important ramifications, particularly if upheld on appeal.

First, the decision relies extensively on the use of statistical evidence. Here the court said that 55% of women passed the test, while 79% of men did.  Thus, the ratio of female passage rate compared to male was 70.6%.  But the court emphasized that the party must still show a cause link.

In doing so, the court first looked at the "four-fifths" rule (or 80 percent) and stated that anything greater than that will typically not be regarded as evidence of an adverse impact.  It is not an automatic rule, but will depend on the circumstances.

The court also said that the second method of establishing causation is a statistical test that "measures that observed differences in outcomes between two groups are attributable to random variation".  The disparity must be typically exceed "two standard deviations".  What does that mean? In plain English it means that there is only a 5% probability that the variance is due to chance at "two standard deviations".  

Second, the case also calls into question the use of some types of physical fitness tests for jobs. Employers who use such tests should consider consulting with counsel about whether the test has a disparate impact and whether the test is necessary at all.  The Court’s decision explains at length that there is a "complex" legal history involved. 

As a practical matter, the case is also notable because it is the very rare case in which the court will grant an employee’s motion for summary judgment.

What’s the Takeaway for Employers?

• Consider reviewing any physical fitness tests you may institute and consider involving counsel in a review to ensure that such tests do not have a disparate impact on a protected group
• If such tests are being used, ensure that they are truly "job-related"; consider revising the test to just those elements that can meet the legitimate business expectations of the position
• If you believe that something might have a disparate impact, don’t rely on the raw numbers; consider the involvement of a statistical expert who can help you better understand items just as the "four fifths" rule or the "two standard deviations". 

Easterling