By John V. Berry, Esq., www.berrylegal.com
We represent police officers who have not passed physical fitness tests relating to their law enforcement employment. When a police department fails a police officer on a test related to physical fitness, they may be subjecting themselves to potential liability depending on the circumstances involved. These types of physical fitness examination issues most often arise: (1) before the officer is hired, (2) after the officer has been employed for 10 years or more; or (3) when an officer is seeking a specialized assignment or promotion.
Police departments, in theory, enact fitness standards as a means for ensuring that law enforcement officers can perform the rigorous duties expected in a public safety environment. However, physical fitness exam requirements, on occasion, are misused by police departments. As a result, a police officer or their police union may decide to contest a police department’s sanction as a result of a failed fitness examination.
Appeals of Physical Fitness Test Failures
There are a number of ways in which an officer or police union can contest physical fitness test failures. Appeals procedures vary, depending on where the officer is employed, and can include the filing of a grievance (and likely going to arbitration) or pursuing the test failure in court. Each physical fitness test failure must be properly reviewed by an attorney before the best course of appeal is decided upon. The focus of this article is on court actions and potential areas of appeal for the individual officer. Unions have additional options in appealing physical fitness standards.
One of the most common approaches to appealing a physical fitness test failure, is to pursue the matter in court. The most common causes of action against police departments for these types of testing failures have involved violations of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). The claims under these 3 acts involve: (1) gender discrimination: (2) age discrimination; and (3) disability discrimination in addition to other potential causes of action.
For gender discrimination claims, both male and female law enforcement officers have asserted claims in court against police departments relating to physical fitness testing issues. Male police officers have brought forward claims of discrimination that they have been subjected to higher physical fitness thresholds than female officers. See Scott v. NH Police Standards and Training Council, Case 12-cv-435-PB (D. N.H. Mar. 8, 2013) (officer arguing that all recruits should be held to the same standard, regardless of their age or gender, because all police officers must complete the same duties at work, dismissed on other grounds); and Bauer v. DOJ, 12-cv-02424 (N.D. Ill. 2012) (recently transferred to the Eastern District of Virginia and currently pending) (male agent trainee alleged, among other claims, gender discrimination where a female trainee had been given a second chance to complete a physical fitness test, but he had not).
Female law enforcement officers have also brought forward claims of disparate (different) treatment. In United States v. City of Erie, Case 1:04-cv-00004 (W.D. Pa. Oct. 4, 2006); 411 F. Supp. 2d 524 (W.D. Pa. 2005), the Department of Justice successfully brought forward a case of gender discrimination against a municipality where a physical fitness agility test resulted in disparate passage rates between male and female officers (the pass rate for male officers was 71% and 12.9% for female officers). Another case, Easterling v. Connecticut, 783 F. 2d 323 (D. Conn. 2011), held in favor of a female applicant where she demonstrated statistical evidence of disparities between males and females in reference to a 1.5 mile run, a component of a physical fitness test).
Age discrimination is the treatment of employees less favorably because of their age. Age discrimination claims under the ADEA have also been brought by police officers in reference to physical fitness standards cases. There have tended to be fewer of these types of cases than those involving gender or disability discrimination, but there are likely to be new and varying types of these cases in the future as the case law in this area continues to develop. It is only a matter of time before we see more cases where police departments have been alleged to have created or implemented new or updated physical fitness tests in an effort to reduce the average age of officers in the workplace.
One of the principles in ADEA cases is that police departments have to establish a rationale for physical fitness testing. This is not necessarily a difficult requirement to meet under existing case law, but one that some departments forget to enact. See EEOC v. Kentucky State Police, 860 F. 2d 665 (6th Cir. 1988) (police department’s mandatory retirement age for police officers was not a bona fide occupational qualification because the police department had not established minimum fitness requirements that would have justified age as a reasonably necessary determining factor.). As mentioned above, age discrimination claims under the ADEA are likely to evolve in the next several years with respect to physical fitness tests as more intentional cases are brought forward.
The ADA bars covered employers, including police departments, from discriminating against disabled individuals, including police officers, in regards to job applications, hiring, advancement, discharge, employee compensation, job training, and other terms, conditions, and privileges of employment.
Police officers have brought disability discrimination claims against police departments related to physical fitness testing issues. One interesting case was decided in Cribbs v. Altamonte Springs, 2000 U.S. Dist. LEXIS 20084 (M.D. Fla. Oct. 6, 2000). In Cribbs, the case involved an officer who had previously injured his knee while in military service. As a result, the officer had difficulty completing a one-mile walk and was disciplined. The officer alleged, among other claims, disability discrimination. The court dismissed the case because it found that the knee injury was not a qualified disability under the ADA. See also Piascyk v. City of New Haven, 64 F. Supp. 2d 19 (D. Conn. 1999) (police officer with 20% limitation in his right ankle and 10% limitation in back, who had the ability to walk a half mile, was not disabled under the ADA).
When a law enforcement officer is faced with issues involving the alleged failure to pass a department related physical fitness test, it is important for them to have counsel. Our law firm advises and represents law enforcement officers in physical fitness test matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.