Barnstead officer sues state claiming fitness test bias
A Barnstead officer who said he failed the state police academy physical fitness requirements after being 11 seconds too slow on a timed run is suing the state, claiming the fitness exams are biased against men.
David Scott said he would have passed if he were a woman because a female his age has two minutes and 56 seconds more to complete the mile and a half run required for graduation from the police academy.
In a lawsuit filed this month, Scott, 54, argues that the state’s fitness standards shouldn’t be used for hiring, saying that even the nonprofit organization that created the benchmarks warns against using them for graduation exams because it appears to violate the Civil Rights Act of 1991.
“What are the physical fitness requirements to be a police officer? If they set those standards at 15 pushups, 25 sit-ups, bench press 150 pounds and run a mile and a half in 15 minutes – if I can’t do it, then I can’t be a cop. The 20-year-old can’t do it, then he can’t be a cop. If the female can’t do it, then she can’t be a cop,” said Scott, who lives in Alton Bay. “There should be one set of numbers. I don’t care whether you’re 20 or 60 or 70. I don’t care if you’re male or female.”
Scott joined the police academy in 2010 shortly after being promoted, on the condition of his subsequent graduation, from a part-time to a full-time officer in Barnstead. Scott, who is representing himself on the lawsuit filed in U.S. District Court in Concord, claims that he excelled in the academy, receiving “superior” scores on several evaluations.
But when it came time to pass the mile and a half run, Scott said he finished in 14 minutes and 44 seconds, 11 seconds behind a passing score for a man his age.
Scott retook the test numerous times.
“I’m ashamed to admit it,” he said. “But I think it was like 10 chances. My fault. Shame on me. I didn’t maintain the regimen. (But) every time I took that test, if I were using the female standards, I would have passed.”
Scott said that after he failed to graduate, the Barnstead Police Department returned him to part-time status in February 2011.
The test Scott failed is required of every New Hampshire Police Academy student. Members must take a pushup, sit-up, bench press and running exam, with passing scores based on a person’s gender and age. To be a full-time officer, applicants need to be in the 50th percentile of performance based on their age and gender norm.
But the Cooper Institute, a research nonprofit that developed those norms, doesn’t recommend using them for hiring purposes.
“The Civil Rights Act of 1991 basically says you can not adjust or use different cut-points for different ages and different genders,” said Steve Farrell, a science officer at the Texas-based nonprofit. “In other words, since the job is the same for everybody regardless of their age or gender, it really doesn’t make sense, to us anyways, to require a female of a certain age to perform at one level versus a male of the same age to perform at a different level.”
Farrell said that since 1999 the Cooper Institute has recommended a single-norm standard for selection purposes like academy entrance or exit tests.
Under that standard – developed after studying job-related fitness standards for 180 federal, state and municipal agencies – the Cooper Institute believes that an applicant should be able to complete the mile and a half run in between 14 minutes and 40 seconds and 15 minutes and 54 seconds. Scott would have met that standard.
But New Hampshire is not alone in testing recruits as it does.
The military, for example, requires that a person pass a physical fitness test before graduating basic training, with the test scored through a gender- and age-based point system.
And despite the Cooper Institute’s recommendations, roughly a third of the agencies that have adopted their norms apply them for selection standards, like New Hampshire, according to Farrell.
Farrell stressed that while the institute doesn’t recommend the practice, there are upsides.
Using the norms for hiring actually develops a more diverse workforce by allowing women to be compared only to other women of their same age rather than the entire applicant pool, Farrell said.
But ultimately he called it “arbitrary” for an agency to use a percentile ranking to decide who is and isn’t capable of being an officer.
“The physical requirements of a police officer are the same regardless of their age or gender. . . . When that emergency comes up, it doesn’t matter whether you’re male or female or old or young,” Farrell said.
The state has been using Cooper’s numbers on graduation exams since 1992, according to Mark Bodanza, a captain at the Police Standards and Training Council, who said the system was re-evaluated as recently as this year.
Bodanza declined to discuss the reasoning for Scott’s failure from the police academy, saying only that the lawsuit, which the state has 21 days to respond to, is written from Scott’s point of view.
Bodanza said the 12-person council – which is made up of police chiefs, sheriffs, judges and the attorney general, among others – has been aware that the state is not using the Cooper Institute’s research as the nonprofit recommends it should be.
He said the council has been advised that using the age- and gender-based norms for hiring is “legally defensible” in court. But he declined to specify lawsuits where that was the case, deferring questions to the attorney general’s office. Deputy Attorney General Ann Rice declined to comment in light of the ongoing litigation.
Bodanza did say that the council largely considered two factors when deciding how to administer fitness examinations: what was the fairest system “across the board for people applying to police departments” and what was a legally defensible system.
“They found both of those things in the Cooper standards,” he said, noting that the council is concerned not only with gender diversity but age diversity as well.
Scott, though, believes the state adopted the current system only “so they don’t get sued by females.”
In his lawsuit, he alleges that the system allows “less overall physically fit females to become” police officers, an assertion Bodanza called “repulsive” and “offensive” to women in law enforcement.
Scott, though, stands by the statement and called the state’s system “discriminatory.”
“If you’re going to base my employment on how fast I can run, then I think every cop out there needs to be able to run the same distance in the same time,” said Scott, who works as a school bus driver to make up for being only part time in Barnstead.
In his lawsuit, Scott is asking that the 11 seconds by which he failed the running test be waived and that he be certified as a full-time officer. He also is looking to be financially compensated for pay he lost after being returned to part-time status and to receive retroactive seniority at the Barnstead Police Department.
Finally, he wants a judge to order the state to provide equal employment opportunities for all candidates.