PETER SIEGELMAN

Document Type

Article

Disciplines

Constitutional Law

Abstract

Many jurisdictions require applicants for police jobs to take physical fitness tests, many of which have easier passing requirements for women than for men. While the goal of increasing women’s representation among police is laudable, this Article argues that the use of gendered cutoff scores violates Title VII for two distinct reasons: not only does it constitute disparate treatment under the core provision of the statute, but it also violates a separate Section that expressly bars the use of different cutoff scores by gender. (Surprisingly, the very few cases to have considered these issues have wrongly concluded that gendered cutoff scores are permissible.) If a unisex passing score is required by statute, the easiest way to increase women’s representation in policing is to make physical fitness tests easier for everyone to pass. Using a statistical model, I evaluate the consequences of relaxing the cutoff score on running tests. I find that doing so would allow more women to pass, would not dramatically worsen the average fitness of those (men and women) who do pass, and would likely have other beneficial consequences such as reductions in excessive force and fewer incidents of violent crimes against women. But relaxing the passing score would not completely forestall disparate impact liability: no matter how easy the cutoff, too many men will likely pass relative to women. Policy makers thus face real tradeoffs between fitness and other goals, but this Article can help them assess how to strike that balance.

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