. How would you argue that Women’s Workout World, a health and exercise club, should be able to lawfully decline to accept men as customers and/or employees?

Circuit Judge Calabresi The district court found that Farmingville’s physical agility test (“PAT”), which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women. * * * * * BACKGROUND Farmingville is the governing body of a volunteer fire department that has approximately 100 members. Pietras was a probationary (i.e., trainee) firefighter in the Farmingville Department. Even as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits. Before Pietras could become a full member of the department, however, she and all other probationary volunteers were required to pass a newly instituted PAT. * The PAT consisted of a series of physical tasks that the applicants had to complete within a specified time limit. The most difficult of these nine labors was the “charged hose drag,” which involved dragging a water-filled hose—weighing approximately 280 pounds—over a distance of 150 feet. To determine the appropriate time limit for the PAT, Farm ingville officials asked various members of the department to take the test. Forty-four firefighters participated in these trials. Of the 44 test-takers, 33 were males who served as full firefighters, 6 were male probationary members, 3 were male junior members, one was Jeanine Serpe, a female full firefighter, and one was Pietras. The average times of these subgroups were: From these results, Farmingville set four minutes as the time within which the labors had to be completed. The four-minute threshold was determined by taking the average of all the (mostly male) test runs (approximately 3:30) and then adding an extra half-minute “to have some leeway.” There was some concern expressed at a 1993 Farmingville Board meeting that neither Serpe nor Pietras had been able to finish the PAT in anything close to four minutes, but Farmingville nevertheless instituted the four-minute cutoff. Following the implementation of the PAT, Pietras tried and failed the test twice. During this same period, six other female probationary firefighters took the test. Four of these women completed the PAT in under four minutes and therefore passed. One woman failed to complete the test for an unknown reason. And one woman did not complete the test despite repeated efforts to drag the water-filled hose over the required distance. All of the 24 male probationary volunteers who took the test at about this time passed. Following her second failure to pass the PAT, Pietras was fired from her volunteer position at Farmingville. * * * * * Pietras filed suit in district court, alleging that Farmingville had violated Title VII of the Civil Rights Act of 1964. * * * * * At trial . . . , Pietras presented testimony from Dr. Robert Otto, an expert exercise physiologist. Dr. Otto conducted an extensive review of the physical agility tests administered by various volunteer and paid fire departments and concluded (a) that the four-minute limit in the Farmingville test had a disparate impact on women, and (b) that it was not job related. After reviewing the evidence, the district court ruled for Pietras. * * * * * [T]he court concluded that “the record is bereft of any evidence” that a four-minute time limit to finish the PAT was job related. † In support of its finding of disparate impact, the court noted that the male pass rate on the PAT was 95 percent (63 out of 66) while the female pass rate was only 57 percent (4 out of 7). Relying on the “four-fifths” rule set forth in the EEOC Guidelines, the court reasoned that “a pass rate for women which is † [T]here is no evidence at all to indicate that the time chosen for the test reflected the needs of the job. In fact, the record makes clear that Farmingville selected the four-minute figure simply by taking the average of all the test scores and then arbitrarily adding some extra time. In the case before us, however, Pietras presented more than just statistics. After conducting an exhaustive analysis of the practices of other fire departments, Dr. Otto provided expert testimony on the disparate impact of Farmingville’s PAT. This expert testimony, combined with the statistics Pietras did present, comfortably tips the scales in favor of the district court’s finding of disparate impact. Affirmed. Questions 1. a. Why did the court conclude that the Farmingville Fire Department had discriminated against Pietras? b. Did the court conclude that Farmingville intended to discriminate? Explain. c. What, if anything, could Farmingville have done differently to win this case? 2. a. Shouldn’t we always choose the strongest, fastest firefighters as long as they are otherwise well qualified? Explain. b. After being rejected for employment as police officers with the Southeastern Pennsylvania Transportation Authority (SEPTA), several women sued SEPTA for sex discrimination based on disparate impact. The women were unable to run 1½ miles in 12 minutes, a job requirement. Fifty-six percent of the men applying for the position passed the related test, but 93 percent of the female applicants could not pass. Resolve the case. Explain. See Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002). 3. a. How would you argue that Women’s Workout World, a health and exercise club, should be able to lawfully decline to accept men as customers and/or employees? b. Decide the case. Explain. See U.S. EEOC v. Sedita , 816 F.Supp. 1291 (N.D. Ill. 1993). 4. Dianne Rawlinson sought employment as a prison guard in Alabama. She was a 22-year-old college graduate with a degree in correctional psychology. She was denied employment because she failed to meet the 120-pound weight requirement for the job. The state also required such employees to be at least 5 feet 2 inches tall. Alabama operated four all-male, maximum-security prisons. The district court characterized the Alabama prison system as one of “rampant violence.” Rawlinson sued, claiming employment discrimination. Decide. Explain. See Dothard v. Rawlinson, 97 S.Ct. 2720 (1977).



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