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A Pennsylvania federal judge has once again ruled that Southeastern Pennsylvania Transit Authority’s police force did not discriminate against women by using a physical fitness test that requires all applicants to run 1.5 miles in 12 minutes or less. In his 69-page opinion in Lanning v. SEPTA, Senior U.S. District Judge Clarence C. Newcomer rejected the claim that such a test has an illegally disparate impact on women since it excludes about 93 percent of female applicants. Newcomer instead found that if SEPTA were ordered to use any lower standard, it would become “a police force with officers who were a danger to themselves, other officers, and the public at large, who were unable to effectively fight and deter crime.” The ruling marks the second time that Newcomer has flatly rejected the claims brought by a class of female applicants, represented by attorney Lisa M. Rau of Philadelphia’s Kairys Rudovsky Epstein Messing & Rau, that was joined by a suit brought by the civil rights division of the U.S. Department of Justice. The 3rd U.S. Circuit Court of Appeals overturned Newcomer’s first ruling and found that he had employed the wrong standard for analyzing such claims. In a disparate impact suit brought under Title VII, the appellate court said that employers must show that such job requirements are truly a “business necessity” and represent the “minimum” qualifications that an applicant must have to do the job. At new hearings before Newcomer, the plaintiffs argued that the running test was not a fair indicator of job performance since many incumbent officers who failed the test were nonetheless commended for good job performance. But Newcomer flatly rejected that argument, finding instead that SEPTA had the right to improve its force by raising its standards. “Basing requirements on an incumbent force that was by all accounts insufficient is hardly the best method by which to measure performance and improve standards. This court will not accept the proposition that employers are restricted from raising standards and that they are bound in their hiring by the level of performance of its incumbent work force,” Newcomer wrote. The plaintiffs also argued that SEPTA’s physical fitness requirements were more rigorous than any other police force in the country, including the FBI, the Secret Service, the Philadelphia police and the New York City transit police. But Newcomer found that comparisons to other forces were meaningless because “SEPTA officers are a part of a unique, foot-based patrol unlike any other transit force.” In his original opinion, Newcomer found that it was “more likely than not” that applicants who pass the 1.5-mile run component of SEPTA’s physical fitness test would be “successful performers on the job,” and that it was “highly probable that those officers who do not pass the 1.5-mile run component of SEPTA’s test will not be successful performers on the job because they lack the aerobic capacity necessary to fulfill the demanding obligations of a SEPTA transit officer.” The 3rd Circuit instructed Newcomer to review the evidence again and determine whether the running test truly estimated “the minimum aerobic capacity necessary to successfully perform the job of SEPTA transit officer.” As a result, Newcomer said, the “sole question” to be addressed on remand was “whether or not SEPTA has proven that its … aerobic capacity standard is the minimum necessary for the successful performance of the job of SEPTA transit police officer.” Newcomer found that SEPTA and its lawyer, Saul Krenzel, clearly met the 3rd Circuit’s standard. The evidence, Newcomer said, “clearly demonstrates that its aerobic capacity requirement is the minimum for successful performance of the job of SEPTA transit police officer.” Looking to the job requirements, Newcomer found that “apprehending perpetrators, deterring crime, assisting fellow officers in emergency situations, and backing up fellow officers are critical components of the job of SEPTA transit police officer.” He also found that an inability to perform any of those tasks proficiently “would compromise the effectiveness of the SEPTA transit police, as well as compromise the safety of the officer, his or her fellow officers, and the public.” At least once a month, Newcomer said, each SEPTA officer must engage in at least one aerobic encounter during the course of his or her duties, either as an emergency assist or a running backup. As a result, he said, SEPTA established that “running is a critical and essential task, and that there exists a significant correlation between police officer performance and a 1.5-mile run.” Newcomer found that crime “has been dramatically reduced since implementation of the fitness program.” Officers who cannot pass the test, he said, “may not arrive in a timely fashion to an assist or backup, and their ability to do work drops off so dramatically, they will likely be ineffective upon arrival.” Citing testimony from SEPTA’s expert witnesses, Newcomer found that “individuals below SEPTA’s aerobic capacity cut point had only a 33 percent chance of arriving at an emergency assist in a timely manner,” while those who passed the test had an 80 percent or greater chance. Newcomer concluded that SEPTA was within its rights to raise physical standards in order to improve the force and deter more crime. “Significant gains in apprehensions and deterrence such as those demonstrated here are to be encouraged and supported by the federal courts. The court simply will not condone dilution of readily obtainable physical abilities standards that serve to protect the public safety in order to allow unfit candidates, whether they are male or female, to become SEPTA transit police officers,” Newcomer wrote. Rau said yesterday that she intends to appeal the decision. The 3rd Circuit, she said, imposed a “heavy burden” on SEPTA to show that it should be allowed to employ a test that “excludes 93 percent of all female applicants.” The evidence, she said, proved otherwise since SEPTA “promoted and commended officers for their job performance who could not meet this standard — a standard that is more rigorous than any other police department in the country.”

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