Y. 1978), a police department’s application of different minimal peak conditions for men in the place of women was discovered to help you form gender discrimination
For the Commission Choice Zero. 79-19, CCH Work Strategies Guide ¶ 6749, a masculine, 5’6″ high, confronted using the minimum, 5’5″ lady and you will 5’9″ male, peak requisite and you can alleged that if the guy was a female he might have entitled to a police cadet position. The respondent may either expose an excellent consistent level requirements you to definitely really does not have an adverse impression based on race, intercourse, otherwise federal source, or introduce that level needs comprises a business needs.
During the Commission Choice Zero. 76-30, CCH Employment Methods Guide ¶ 6624, the brand new Fee discover zero evidence of unfavorable feeling against lady having admiration in order to a bare unsupported allegation regarding jobs assertion centered on sex, on account of the absolute minimum peak requirements, in which there is zero neutral top rules, with no one got previously been refused predicated on peak. Together with, discover zero evidence of different cures. The previous incumbent, the brand new selectee, additionally the battery charging class have been most of the ladies, and there is no facts you to a shorter men wouldn’t 
supply been denied.
The court in U.S. v. Lee way System Freight, Inc., 7 EPD ¶ 9066 (D.C. Ok. 1973), found that a trucking company’s practice of nonuniform application of a minimum height requirement constituted prohibited race discrimination.
(c) Negative Effect –
In early decisions, the Commission found that because of national significance, it was appropriate to use national statistics, as opposed to actual applicant flow data, to establish a prima facie case. The Commission also found that many of the employer proffered justifications for imposing minimum height requirements were not adequate to establish a business necessity defensemission Decision No. 71-1529, CCH EEOC Decisions (1973) ¶ 6231; Commission Decision No. 71-2643, CCH EEOC Decisions (1973) ¶ 6286; and Commission Decision No. 71-1418, CCH EEOC Decisions (1973) ¶ 6223. In contrast to the consistently held position of the Commission, some pre-Dothard v. Rawlinson, supra court cases came to different conclusions. Smith v. Troyan, 520 F.2d 492, 10 EPD ¶ 10,263 (6th Cir. 1975); Castro v. Beecher, 459 F.2d 725, 4 EPD ¶ 7783 (1st Cir. 1972). The Supreme Court in Dothard v. Rawlinson, supra, however, agreed with the Commission’s position and used national statistics to find that minimum height and weight requirements were discriminatory and that unsupported assertions about strength were inadequate to constitute a business necessity defense.
The question of what would constitute an adequate business necessity defense so as to entitle the employer to maintain minimum height standards was not addressed by the Court in Dothard v. Rawlinson, supra. On a case-by-case basis, Commission decisions and court cases have determined what things do not constitute an adequate business necessity defense. The EOS should therefore refer to the ples set out in the following section for guidance. Where, however, the business necessity of a minimum height requirement for airline pilots and navigators is at issue, the matter is non-CDP, and the Office of Legal Counsel, Guidance Division should be contacted for assistance.
Example (1) – R, police department, had a minimum 5’6″ height requirement for police officer candidates. R’s police force was 98% White male, and 2% Black male. There were no female or Hispanic officers, even though the SMSA was 53% female and 5% Hispanic. CPs, female and Hispanic rejected job applicants, filed charges alleging that their rejections, based on failure to meet the minimum height requirement, were discriminatory because their protected groups were disproportionately excluded from consideration. To buttress this argument, they introduced statistics showing that on a national basis, while only 3% of Black or White males were excluded by the 5’6″ requirement, 87% of females and 88% of Hispanics were excluded. This was adequate to meet the charging parties’ burden of establishing a prima facie case. In its defense the respondent had its supervisory personnel testify that the minimum height requirement was necessary for the safe and efficient operation of its business. According to respondent, taller officers enjoyed a psychological advantage and thus would less often be attacked, were better able to subdue suspects, and could better observe field situations. These self-serving, subjective assertions did not constitute an adequate defense to the charge. They did not fairly and substantially relate to the performance of the duties of a police officer. Accord Horace v. Town of Pontiac, 624 F.2d 765, 23 EPD ¶ 31,069 (6th Cir. 1980), and Cutting edge Justice Community Inc. v. Hughes, 471 F. Supp. 670, 20 EPD ¶ 30,077 (D.C. Md. 1979).