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Voting 2-1, the 3rd U.S. Circuit Court of Appeals has ruled that the Southeastern Pennsylvania Transit Authority’s (SEPTA) physical fitness test for job applicants of its transit police force is perfectly legal — even though it has a “disparate impact” on women — because it serves as a true measure of “the minimum qualifications necessary for the successful performance of the job.” But a dissenting judge in Lanning v. SEPTA said he would have declared the test illegal since it effectively shuts out a high percentage of women who could have met the requirements if SEPTA had simply allowed them to take it upon completing academy training. The ruling comes more than five years after the suit began and is just the latest twist in what proved to be a legal roller coaster ride for both sides. In the suit, the plaintiffs claimed that the test discriminates against women because it requires all applicants for the SEPTA police force to run 1.5 miles in 12 minutes. SEPTA argued that the test is necessary because some stations are several flights of stairs above or below ground level and officers can be required to run three to five blocks between stations. Officers are required to wear 26 pounds of gear, including a bulletproof vest. After a non-jury trial, Senior U.S. District Judge Clarence C. Newcomer in Philadelphia ruled in favor of SEPTA in June 1998, but the 3rd Circuit later vacated the decision and held that Newcomer had applied the wrong test. Third Circuit Judge Carol Los Mansmann said Newcomer should study the case again and decide whether the test measures the “minimum qualifications” necessary to do the job. After additional hearings, Newcomer issued a second opinion in December 2000 that once again upheld SEPTA’s right to use the more rigorous test. Before the second appeal, the complexion of the case changed considerably. Lead plaintiffs’ lawyer Lisa M. Rau was elected to the Philadelphia Common Pleas bench and was replaced by Michael Churchill of the Public Interest Law Center of Philadelphia. And the U.S. Justice Department, which had joined as co-plaintiff in both trials, announced that it was dropping the case on the day its appellate brief was due to be filed. Although the department had pressed the case for four years under the Clinton administration, arguing that the test effectively excludes women from the SEPTA police force because 93 percent of women applicants can’t pass it, the new leadership appointed by President Bush opted not to fight a second appeal. Sources said the Justice Department’s decision came after a lengthy internal battle in which many lawyers in the department’s Civil Rights Division fought to keep the case. In the end, Assistant Attorney General Ralph F. Boyd Jr. made the decision to withdraw from the case. “We feel it is critical to public safety that police and firefighters be able to run, climb up and down stairs to rescue people quickly under the most trying of circumstances,” said spokesman Dan Nelson. The second appeal was also complicated by the death of Judge Mansmann after oral argument. Since the remaining two appellate judges — Theodore A. McKee and Maryanne Trump Barry — did not agree, Judge Jane R. Roth was added to break the tie. Now Barry and Roth have ruled that Newcomer, in his second opinion, not only applied the correct test, but reached the right result. Writing for the court, Barry found that SEPTA “produced more than sufficient competent evidence” to show that a pre-hire, pre-academy training running test “measures the minimum qualifications necessary for successful performance as a SEPTA transit police officer.” As a result, Barry said, SEPTA “justified the conceded disparate impact on female candidates by showing business necessity.” Barry said she reached the same conclusions that Newcomer had about the need for a high level of physical fitness among SEPTA police applicants. “A SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia,” Barry wrote. Barry also found that the test wouldn’t shut out women who were determined to pass it since studies showed that most women could do so with some training. Nearly all the women who trained were able to pass after only a moderate amount of training. It is not, we think, unreasonable to expect that women — and men — who wish to become SEPTA transit officers, and are committed to dealing with issues of public safety on a day-to-day basis, would take this necessary step,” Barry wrote. “Moreover, we do not consider it unreasonable for SEPTA to require applicants, who wish to train to meet the job requirements, to do so before applying in order to demonstrate their commitment to physical fitness. The poor physical condition of SEPTA officers prior to 1989 demonstrates that not every officer is willing to make that commitment once he or she is hired,” she wrote. MCKEE DISSENTS In a spirited dissent, Judge McKee said his colleagues were missing the issue when they described the plaintiffs’ claim as a request that SEPTA be forced to “engage in high-stakes gambling when it comes to public safety and law enforcement.” “I cannot stress too strongly that the issue is not now, and never has been, whether SEPTA must jeopardize public safety in order to eliminate the disparate impact that SEPTA concedes the [running test] visits upon female applicants,” McKee wrote. “Rather, the issue continues to be whether SEPTA can justify that cutoff under the business necessity test.” McKee said he would have declared the test illegal because it disqualifies 90 percent of female applicants from even beginning training. In a disparate impact case, McKee said, the plaintiff can win by showing that alternatives exist that would achieve the same result and have a lesser impact. The plaintiffs, McKee said, did just that. “SEPTA could impose the [running test] as a condition of graduating from the police academy rather than as an application qualifier. The period between application and actually becoming a transit police officer is sometimes as long as two and one-half years. If this performance standard is as important to the work of a transit police officer as SEPTA claims, the quality of SEPTA’s police force would only be enhanced, not weakened, by requiring officers to meet it when they graduate from the academy,” McKee wrote. McKee also faulted SEPTA for imposing a physical fitness requirement on applicants that it does not impose on incumbent police officers. “SEPTA can not have its cake and eat it too,” McKee wrote. If the running test is “so vital to public safety that it is a business necessity,” McKee said, then SEPTA “cannot require it only of applicants without showing that the failure to require it of incumbents has had a negative impact on their performance as police officers.” Conversely, McKee said, if the relationship between public safety and the running test appears to be “tenuous” — since SEPTA’s fails to consider it when making job offers, promotions or commendations — then SEPTA “cannot continue to use justifiable concerns about public safety as a boogeyman to support the admittedly discriminatory cutoff it uses to screen applicants.” The plaintiffs were represented in the appeal by attorneys Michael Churchill of the Public Interest Law Center of Philadelphia and Jules Epstein of Kairys Rudovsky Epstein & Messing. SEPTA was represented by attorney Saul H. Krenzel.

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