DENVER (CN) – A federal judge has ruled in favor of 12 police officers with the Colorado Springs Police Department, finding the department’s new physical-fitness tests have a disparate impact on women.
U.S. District Judge Richard Matsch found the 12 female police officers successfully argued that the Colorado Springs Police Department’s new physical-fitness tests resulted in a 50 percent failure rate for female officers, while only 6 percent of male officers failed. In his opinion, Matsch concluded that the tests violate Title VII of the Civil Rights Act of 1964, which prohibits sexual discrimination by employers.
Colorado Springs Police Chief Peter Carey issued an order in September 2014 that required all sworn police officers to take a fitness test every year that consisted of push-ups, sit-ups, and running.
“That order announced that ‘any employee who does not meet the minimum performance standard will be placed on light duty and on a performance improvement plan (PIP) until he/she can successfully complete the process with a minimum score of twenty,’” Matsch wrote in his July 12 order.
All 12 female officers failed the 2014 tests, and nine passed after secondary testing. Three of the officers have yet to pass.
The officers brought a disparate impact discrimination claim against the department in April 2015. The five-day trial took place in late October and early November 2016.
The 21-page opinion said that at the trial, the department didn’t show the tests used proper cutoff scores. The tests and criteria for passing, which were curated by the Maryland-based Human Performance Systems Inc., were “not reliable assessments of job performance, and the cutoff score set by HPS is an arbitrary score,” Matsch wrote.
Industrial-organizational psychologist Dr. Kurt Kraiger testified as an expert witness for the plaintiffs, and said the 2013 practice fitness tests showed a glaring difference between the male and female officers’ scores: 90.5 percent of the men passed, while only 59.7 percent of the women passed.
Kraiger said HPS’s tests were not only faulty – he had “detected a flaw in how the BEEP test was being scored” that HPS has since acknowledged – but he also testified the tests were not a reliable gauge of job performance.
“Dr. Kraiger reviewed HPS’s work and opined that HPS did not use an appropriate method for determining the cutoff scores for the PAT [physical abilities test],” Matsch wrote. “He observed that using criterion measures to set passing scores is problematic. The evidence presented at trial bore that out. The criterion measures developed by HPS are of questionable value.”
He added, “Most significantly, the evidence presented at trial revealed that the scoring system and cut-off score selected by HPS are meaningless.”
Matsch said a similar fitness test might be a reasonable way to vet new, incoming recruits, but that putting seasoned officers through the test was unnecessary – and the officers experienced mistreatment after they failed the tests, Matsch said.
“The failure to pass initially has had a devastating effect on the plaintiffs who have had to endure the indignity of being denied recognition as a police officer by the restrictions imposed by the department,” Matsch wrote. “They have been shamed and ostracized.”
He added, “To retroactively impose that requirement on women who have invested their lives as career police officers is fundamentally unfair. That is not to say that there can be no fitness requirement to maintain employment, but to use physical tests that are not valid measures of the level of fitness that job duties actually require is a violation of Title VII when, as here, there is a disparate impact on women officers.”
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