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Department Of Justice Sues Pennsylvania State Police.

DOJ-v-PA-State-Police-ROHWith nothing else on its plate to look into, the Department of Justice announced that it was suing the Pennsylvania State Police (PSP) over the use of base physical standards as criteria to be selected for training as a Pennsylvania State Trooper.

In a press release, the DOJ says:

The complaint, filed in the U.S. District Court for the Middle District of Pennsylvania, alleges that the physical fitness tests used by the state police between 2003 and the present excluded qualified women from consideration for hire as entry-level state troopers by

testing for physical skills that are not required to perform the job. The department also alleges that, during the relevant time period, the defendants’ use of physical fitness tests as part of a multi-step employment selection process disproportionately screened out female applicants, resulting in a disparate impact against those applicants.

According to the actual complaint, the DOJ says that there were two fitness tests administered to applicants. One test was administered from 2003 to 2009, and another test with more elements was administered between 2009 until 2012.

For the 2003 – 2009 test:

The 2003 PFT consisted of five events: (1) a 300-meter run; (2) sit-ups; (3) push-ups; (4) a vertical jump; and (5) a 1.5-mile run.

Male and female applicants were given different standard of performance to pass but more women failed the test percentage wise than men.

Under the theory of “disparate impact,” the DOJ now asserts that because women failed the test more than men, the test itself must discriminate against women.

This assertion of “disparate impact” is one that we have encountered before. In many cases it makes no sense. “Disparate impact” looks for a statistical difference in protected classes of people (women, minorities, etc) and then says “the test or standard must be wrong.” For example, the DOJ sued the Boston Fire Department over tests for promotion to the rank of Captain. Blacks failed the test more than other racial groups and the DOJ said the test was therefore discriminatory. They never articulated how the test was wrong, only that it was. The DOJ was never able to say which questions, tone of the test, or how the test was administered was discriminatory, only that because one class of people failed more than others, the test itself must be discriminatory.

In that the test asked factual questions, it is hard to explain how the test itself was discriminatory. We see nothing discriminatory in the questions such as “2 + 2 + ?” It doesn’t matter what gender, race, etc the person is. Either they get the question right or they do not.

In the Pennsylvania State Police case, the DOJ asserts that the physical tests had nothing to do with job performance.

After all, police are never required to chase someone (300 meter run), exhibit core body strength in wrestling with criminals (sit-ups and push ups), climb a fence in pursuit of someone (vertical jump) or exhibit stamina (1.5 mile run) during long hot days or cold days in the middle of a blizzard wearing lots of police gear.

Nah. Nothing job related to physical standards there.

Yet there is something more. Coming into a job interview (which is what the physical tests are part of) knowing that you are going to need to perform at a certain physical level and not meeting that level shows a lack of commitment to the job right off the bat. No cop wants to work with a partner who is not committed to the job. Furthermore, studies have shown that cops will gain weight as their careers go forward. It is reasonable to have police that start at a basic level of fitness when joining the force.

Unfortunately, it is now up to the Pennsylvania State Police to prove that the tests are fair. They are, in essence, “guilty until proven innocent” as just the accusation that the tests are discriminatory puts the onus on the PSP to prove they are not.

“Disparate impact” is something that Eric Holder is committed to. He is so committed to its idea and flawed premise that he and the DOJ have done everything they can from allowing the Supreme Court to rule on its validity. The DOJ has settled housing cases they brought against towns once the town was granted cert by the Supreme Court to hear the case.

It is telling that the DOJ doesn’t want these cases near the Supreme Court as there doesn’t seem to be a Constitutional, legal or logical basis for saying using statistics to claim discrimination without showing what is causing the discrimination.

In short, the DOJ ignores the ol’ adage from Mark Twain of:

“There are three kinds of lies: lies, damned lies and statistics.”




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