Opinion
CLARK, J. Plaintiff appeals from judgment denying petition for writ of mandate. Challenging City of Oakland’s requirement that police officer applicants be able to scale a six-foot wall, she claims the disproportionate rejection of females constitutes sex discrimination denying equal protection and violating the 1964 Civil Rights Act. The trial court upheld the requirement as reasonably related to the duties of Oakland police officers. We affirm the judgment.
Plaintiff similarly challenged in 1971 the reasonableness of height and weight requirements for becoming Oakland police officers. (Hardy v. Stumpf (1974) 37 Cal.App.3d 958 [112 Cal.Rptr. 739].) Those requirements were struck down in that case because the evidence failed to [6]demonstrate they were reasonably related to actual job performance. In attempting to comply with standards suggested by the Court of Appeal, Oakland devised a new physical performance test. A job analysis survey of Oakland police officers determined their duties include an ability to run, lift or drag objects and scale walls. The new test requires the performance of these and other tasks, emphasizing agility rather than strength.
The new test requires an applicant to run 300 feet (the length of a city block), scale a 6-foot wall (the height limitation for fences in Oakland), walk across a balance beam, run another 300 feet, register 75 pounds on a grip dynamometer device, and drag a 140-pound dummy for 50 feet, raising it to a 2-foot platform, all within 2 lA minutes. An applicant must scale the wall in two attempts and walk the balance beam in two tries. Anyone failing the test may retake it after four months. Of the women who have taken the physical agility test, only 15 percent passed in comparison to the 85 percent passage rate for men.
Before instituting the test as a selection device, an experimental study was made wherein the test was given to 41 male police officers and 20 female volunteers. The women varied in age, size, and physical condition. Of this group, 50 percent of the women failed to scale the wall on both attempts, while only 7.5 percent of the men failed. Ten percent of each sex failed the balance beam. The women averaged 87 pounds on the grip test, the men 140 pounds. No one failed the dummy drag and lift. The average time to complete all events for females was 2 minutes 28 seconds, for men 1 minute 48 seconds.
Plaintiff, a 27-year-old, 5-foot 4-inch, 118-pound female, applied for a position with the Oakland Police Department. She passed the written test but failed the physical agility test when she was unable to scale the six-foot wall in both attempts.1
We conclude the challenged test does not discriminate on the basis of gender and is rationally related to the requisite qualifications for an Oakland police officer. Accordingly, the test does not constitute a denial of equal protection or a violation of the 1964 Civil Rights Act.
[7]Equal Protection
Traditionally, the constitutional right to equal protection requires that state action bear some rational relationship to a legitimate governmental purpose. (E.g., Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487].) However, when state action creates a suspect classification or abridges some fundamental right, such action becomes subject to strict judicial scrutiny and the state must show a compelling state interest in justification. (Id.)
Plaintiff asserts the strict scrutiny standard is applicable in the circumstances of this case, claiming the physical agility test discriminates against women and abridges their fundamental right to pursue employment.
Classifications predicated on gender are deemed suspect in California. (Cal. Const., art. I, § 8; Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 20.) However, the physical agility test does not constitute a classification based on gender. The six-foot wall climb, as with all other events, is required of both men and women. The only classification occurs between those persons—male and female—who can climb the wall and those— again of both sexes—who cannot. Plaintiff is thus not prevented from becoming a police officer on the basis of her gender, but rather because she is unable to demonstrate necessary physical ability.
While the test is neutral on its face, plaintiff contends its disproportionate disqualification of females invokes strict scrutiny. Plaintiff relies upon the minority opinion in Hardy v. Stumpf, supra, 37 Cal.App.3d 958, which states “a seemingly neutral job requirement which has the effect of disqualifying a disproportionate number of one sex is discriminatory and must be viewed under the strict scrutiny test.” (Id., at p. 962.) The statement is overbroad and in error. The United States Supreme Court, in dealing with an equal protection challenge to a job requirement which disqualified a disproportionate number of black applicants, held a personnel test which excluded, although not designed to do so, disproportionately large numbers of black applicants did not offend equal protection. (Washington v. Davis (1976) 426 U.S. 229 [48 L.Ed.2d 597, 96 S.Ct. 2040].) “Standing alone, [disproportionate impact] does not trigger the rule [citation] that racial classifications are to be subjected to the strictest scrutiny . ...” (Id., at p. 242 [48 L.Ed.2d at p. 609].)
[8]Nor does the classification in the present case impinge upon a fundamental right. In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal.Rptr. 786, 520 P.2d 10], we held the right to pursue a lawful occupation is fundamental only if the employment sought is a common occupation within the community. An individual does not possess a fundamental right to pursue an occupation wherein “technical complexity and intimate relationship to the public interest and welfare counsel. . . deference to legislative judgment.” (Id., at p. 18.)2
The occupation before us is hardly a common one. Law enforcement involves not only a close relationship to the “public interest and welfare” but also requires physical skills and technical knowledge including detailed knowledge of the law. Police officers must possess the physical ability to maintain public order, to protect persons and property, to avert wrongdoing, and to apprehend criminals. Application of the criteria enunciated in D’Amico compels the conclusion no one possesses a fundamental right to become a police officer.
Further, a constitutional right to pursue an occupation presupposes an ability to perform the job. Neither the federal nor state Constitution suggests a person be employed absent the ability to satisfy job requirements. No prohibited classification occurs when a statute categorizes those who can and cannot meet job requirements.
In the absence of both a suspect classification and a fundamental right, we apply the traditional equal protection standard. The record clearly establishes a reasonable relationship between the physical performance test—particularly the six-foot wall climb—and job performance. The job analysis survey, upon which the physical performance test is based, indicated Oakland police officers in routine performance of their duties must occasionally scale walls or fences. With a city fence height limitation of six feet, it is reasonable to require police officer applicants to scale a six-foot wall as a prerequisite to becoming an Oakland police officer.
[9]Civil Rights Act
Plaintiff further contends the physical agility test violates title VII of the Civil Rights Act of 1964. (42 U.S.C. § 2000e-2(a); Lab. Code, §§ 1411, 1412; Gov. Code, §§ 50084, 50085.) The objective of title VII is to achieve equality of employment opportunity by removing arbitrary and unnecessaiy barriers which discriminate on the basis of gender. (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 429-431 [28 L.Ed.2d 158, 164, 91 S.Ct. 849].) An employer may rely on ability tests to determine competency of applicants providing the tests are not designed or used to discriminate (42 U.S.C. § 2000e-2(h)), and are demonstrably related to job performance. (Griggs v. Duke Power Co., supra, 401 U.S. 424, 436 [28 L.Ed.2d 158, 167].)
The Equal Employment Opportunity Commission (EEOC), having enforcement responsibility, has provided guidelines to determine employment test validity. (29 C.F.R. pt. 1607.) Guideline review compels the conclusion the physical agility test is properly job related in the instant case. Although the EEOC prefers validity be based on a criterion-related study as described by the American Psychological Association, evidence of content validity alone is acceptable. (Id., § 1607.5(a).) A test will satisfy content validation if sufficient information exists from a job analysis that the knowledge, skill or behavior tested is a suitable sample of the job. The EEOC warns the knowledge, skill or behavior must not include those which can be acquired in a brief orientation to the job. (Id., § 1607.5(a).) It is unlikely applicants, incapable of learning to scale a six-foot wall in preparing for the test, will easily acquire the skill once in uniform.
The job analysis survey demonstrates the test is significantly correlated to important elements of the job. (Id., § 1607.4(c).) Again, the six-foot wall climb as a testing criterion reflects a critical duty of Oakland police officers. (Id., § 1607.5(b)(3).) The test has practical significance for it consists of physical tasks officers are required to perform. (Id., § 1607.5(c)(2).) The test avoids subjective bias because it is graded on a pass/fail basis. (Id., § 1607.5(b)(4).) Applicants need only demonstrate they meet the normal expectation of police officer proficiency. (Id., § 1607.6.) Finally and significantly, any applicant failing the test is permitted to take it again. (Id., § 1607.12.)
It is contended herein the City of Oakland has not complied with an EÉOC guideline requiring that current police officers pass the same [10]physical agility test required of police officer applicants.3 While the somewhat ambiguous language of the second sentence of the guideline might be read as supporting such contention, the language following the second sentence makes abundantly clear the guideline’s intent to restore opportunities lost through prior discriminations. As applied in the circumstances of this case if females “have been” denied equal opportunities “because of prior” discriminations, they must now be afforded the “same opportunities as had existed for [males] during the period of discrimination.” In conclusion the guideline states: “Thus, no new test . . . can be imposed upon [females] who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent standards previously in force” (Italics added.)
What the guideline tells us is that a female applicant, who because of some prior discrimination was unable to qualify under previous less stringent standards, cannot now be required to take and pass a more stringent test. The guideline thus does not purport to require an employer to continue to test its current employees in the same manner as it tests applicants for new positions, as has been urged.4 Moreover, there is no showing on the record that earlier testing standards, emphasizing strength rather than agility, demanded less of an applicant for a position as an Oakland police officer. Accordingly, the guideline has no application in the prevailing circumstances.
[11]Despite identical purposes, the_ standard of judicial review is more probing under title VII than under equal protection concepts. (See Washington v. Davis, supra, 426 U.S. 229, 246-247 [48 L.Ed.2d 597, 611-612].) Under title VII a prima facie case of sex discrimination is established if a neutral employment testing device has a disproportionate effect on one gender. (Albermarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [45 L.Ed.2d 280, 301, 95 S.Ct. 2362].) Once discrimination is shown by the complaining party, the employer has the burden of proving the test is demonstrably related to the job. (Id., at p. 425 [45 L.Ed.2d at p. 301].) If the employer meets its burden, the complainant is then afforded an opportunity to show other tests would satisfy the same employment requirements without similar disproportionate results. (Id., at p. 425.)
Evidence adduced at trial established a prima facie case of sex discrimination in that six times as many men as women passed the physical agility test. However, as already noted, the Oakland Police Department successfully demonstrated the physical agility test is related to job performance. Plaintiff failed to show an alternative test could effectively determine applicant’s ability to perform the duties of an Oakland police officer while reducing the disproportionate impact upon women. Surely, it is difficult to imagine a more accurate way of testing ability to scale a six-foot wall than to scale one.
The judgment is affirmed.
Mosk, J., Richardson, J., Wright, J.,* and Sullivan, J.,† concurred.
After failing the test, plaintiff requested permission to make several practice attempts. On her first “off the record” effort, she successfully scaled the wall. As with all applicants who failed, she could reapply and retake the test in four months. Instead, she chose the present litigation.
Although language in Sail'er Inn, supra, 5 Cal.3d 1, 17 suggests an individual possesses a fundamental right to pursue any lawful occupation, the overbreadth of this language was noted and appropriately limited in D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1.
The particular guideline provides as follows: “The principle of disparate or unequal treatment must be distinguished from the concepts of test validation. A test or other employee selection standard—even though validated against job performance in accordance with the guidelines in this part—cannot be imposed upon any individual or class protected by title VII where other employees, applicants or members have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority or sex group have been denied the same employment, promotion, transfer or membership opportunities as have been made available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.” (29 C.F.R. § 1607.11.)
The position urged by the dissent—that changed, even improved, testing standards must be imposed on persons deemed to be currently qualified as well as persons seeking such status (see dis. opn., post, pp. 13-14) —might lead to almost ridiculous results. Thus an employer, unless he tested all employees on each occasion when new testing standards were adopted, might be bound to continue to use outdated testing standards. Members of the bar might be required to take and pass the bar examination with the adoption of each new testing device, as in the case of a change from a full essay examination to a part essay and a part multiple choice examination, or upon the inclusion of new subject matter materials, for example, a professional responsibility examination.
Retired Chief Justice of California sitting under assignment by the Acting Chairperson of the Judicial Council.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.