State says police fitness test doesn’t discriminate
A Barnstead police officer has sued the state for gender discrimination, saying the police academy’s fitness exam, which he failed after missing a timed run by 11 seconds, is biased against men. But the state says David Scott hasn’t shown the test’s scoring guidelines, which are based on age and gender norms, to have even the slightest negative impact on either men or women.
In fact, Scott is one of four people to not pass the exit exam in the past five years, according to the state.
In a motion to dismiss filed this month in U.S. District Court in Concord, Senior Assistant Attorney General Nancy Smith argues fitness standards like the ones used at the police academy actually create a fairer playing field than tests using a single cutoff for every applicant.
In his lawsuit, Scott advocates for that single standard, saying that because all police officers must complete the same duties at work, they should all be held to the same physical requirements on the academy’s exit exam.
The test Scott failed is required of every New Hampshire Police Academy student. Members must take a push-up, 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. When entering the 14-week academy, the officers must be at the 35th percentile.
Scott enrolled in the police academy in 2010 after being promoted, on the condition of his future graduation, from a part-time to full-time officer in Barnstead. In his lawsuit Scott said he tried 10 times to complete the mile and a half run in the allowed time but his best score – 14 minutes and 44 seconds – was 11 seconds behind pace. He subsequently was returned to his part-time status in Barnstead.
But if he were held to the same standard as a woman of his age, Scott argues, he would have passed every time, having an extra 2 minutes and 56 seconds for the run.
In its motion to dismiss, the state said Scott hasn’t proved two important aspects of a discrimination lawsuit – disparate treatment and disparate impact.
On the matter of treatment, Smith writes that the state’s standards aren’t intentionally discriminatory toward men, noting that intent has been a crucial threshold in similar gender-based discrimination cases.
And on impact, Smith argues that there simply hasn’t been a negative outcome to testing based on age and gender norms. She said courts have generally agreed that there might be a disparate impact if the passing rate for a specific group is below 80 percent of the passing rate for the best-performing group.
“If 100 people take the test and 50 are men and 50 are women and all 50 of the men pass and only 30 of the women pass, then you would have statistics that suggest that there might be a disparate impact of that test,” Smith said.
That’s not the case here, the state argues.
In the past five years, all 89 female students have passed the exam, according to the state. Of the male recruits, 728 of 732 have passed.
Scott acknowledged this week that the numbers show no disparate impact. While noting that statistics from the entrance exam – where applicants need to be in the 35th percentile – would be a better test of possibly negative impacts, Scott said his lawsuit is focused mainly on unfair treatment.
He argued that disparate treatment does not have to be intentional.
“It’s different treatment,” he said. “Why should there be different standards for different genders or different races or different whatever? . . . If I’ve got to pull a 200-pound man out of a burning car . . . or a 110-pound officer has to pull a man out of a burning car, who’s going to do it? The bottom line is this needs to be a same job, same standard, test.”
The state also argues in its motion that it wouldn’t make sense for the police academy to set an absolute cut point for its fitness exams because the academy trains individuals for over 200 different law enforcement agencies, each with different job duties and physical requirements. Instead, the academy’s test sets the “minimum fitness” standard.
“(If) Mr. Scott’s employer, the Town of Barnstead, determines that all police officers in its force need to be able to run 1.5 miles or sprint 300 meters in a specific amount of time, or complete a dummy drag or other specific activities within set parameters because they will have to perform those actions within those parameters to be successful in their job, they are free to do so,” the motion reads.
Finally, Smith argues that Scott’s lawsuit, which has been filed against both the state and the New Hampshire Police Standards and Training Council, isn’t valid because neither body employs Scott.
The age and gender norms being used by the state were developed by the Cooper Institute, a fitness research nonprofit.
The Cooper Institute, though, doesn’t recommend its numbers be used for hiring purposes or exit exams, saying it appears to be a violation of the Civil Rights Act of 1991.
The Cooper Institute has recommended a single-norm standard, like the one Scott is advocating, since 1991, according to Steve Farrell, a science officer at the Texas-based nonprofit. Farrell noted that roughly a third of the agencies that have adopted their norms apply them for selection standards, like New Hampshire.
Doing so has the potential to develop a more diverse workforce by allowing women to be compared only with other women of their same age rather than the entire applicant pool, Farrell said.
The state has used the norms for the police academy’s exit exam since 1992 and has re-evaluated their usage as recently as this year, according to Mark Bodanza, a captain at the Police Standards and Training Council.
Scott, who is representing himself on the suit, filed a response to the state’s motion this week.
In his lawsuit, Scott asks 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.
Scott said he currently works as a bus driver to make up for the lost wages.