Implementing overly-stringent standards is hardly a panacea for a department’s litigation woes. If standards are based on, relative to, or disparately impact members of a protected class, then rejected applicants may allege discrimination under state or federal law.
Inclusion promotes greater public safety
The 1991 Amendments to Title VII prohibit the use of testing mechanisms with a disparate impact on women. Thus, if women fail a physical agility test at a higher rate than men, the test may violate federal law. However, if gender-normed cutoff scores attempt to compensate for these rates, a department may run afoul of § 106 of the same law.
Reconciling these provisions is a worthwhile endeavor, but remains something few departments have achieved.
First, a department can elect to have a single set of standards, even if it has a disparate impact, upon demonstrating that the requirements are consistent with business necessity. Thus, departments must show that the inability to meet a certain aerobic threshold or perform a simulated task would significantly jeopardize public safety.
Second, a department can maintain gender-normed standards if they can demonstrate that gender is a bona fide occupational qualification. This narrow exception requires that “a job qualification . . . relate to the essence, or to the central mission of the employer’s business.”
In many ways, increasing female employment as first responders does promote greater public safety. Female police officers, on average, are better at handling domestic violence situations. This is due to better communication skills, fewer targeted insults and threats than male officers, and a lower risk to engage in misconduct or be sued. These benefits do not necessarily involve any trade-offs, as research has consistently shown that women are just as successful in duty and are equally capable of patrol requirements. Strength does not translate to an ability to handle dangerous situations.
Validation studies trade cost for defensibility
Disciplines tend to vary, however, on whether these capabilities should be assessed through generic exercises or simulations. The former method tends to be preferred in law enforcement, where testing procedures and cutoff scores vary widely on a department-by-department basis. The latter method is used predominately in firefighter testing, with the CPAT implemented by more than 1100 departments nationwide.
Regardless of the selection device used, departments must ensure that the tasks are representative of the skills demanded of the position and that the cutoff scores on the tests provide a meaningful distinction between capable and incapable individuals.
These validation studies can be expensive. In an attempt to avoid these costs, some departments apply another agency’s standards outright. This practice has the least amount of defensibility when challenged in a courtroom since the copycat department needs not only to substantiate how and why the standards were developed, but also why these measures are relevant to its personnel.
A better practice, then, is to conduct a transferability study to establish that a department has a strong degree of similarity to an agency that already has validated standards. This not only promotes more consistent and effective testing for first responders, but eliminates the need for departments to reinvent the wheel by conducting costly and duplicative validation research.
In addition to eliminating these costs, national standards can also provide departments with better top cover from litigation. CPAT’s debut in 2006 directly correlates with a decline in the number of discrimination lawsuits filed against fire departments.
National standards are cost-effective
In determining whether or not to invest in this or another national test, departments should therefore factor in the savings from having to defend fewer lawsuits, as well as the increased likelihood of courtroom success for the cases that are filed.
For instance, in United States v. Wichita Falls, a federal district court upheld a police department’s physical assessment because it was a “nationally accepted and popular test for determining the general fitness of an individual” that “accurately identifie[d] characteristics necessary to perform a job.” Thus, perhaps the best and most cost-effective practice, as informed by case law and the success of the CPAT in the firefighting industry, would involve the creation of nationally-validated standards for all other domains of public safety.
First responders are entrusted with upholding the law and protecting lives, so it is only proper that they should adhere to stringent fitness standards befitting that great responsibility. By investing resources in fitness, aligning with national standards as they become available, and challenging the status quo, departments can establish themselves at the forefront of their respective industries in the twenty-first century and beyond.
For more information about fitness standard creation, implementation, and litigation, read our whitepaper, “Fitness standards: Developing effective and legal tests for public safety professionals” in Thought Leadership.