In Blake v. City of Los angeles, 595 F.2d 1367, 19 EPD ¶ 9251 (9th Cir. 1979), the court looked at Dothard, supra and concluded that the plaintiffs established a prima facie case of sex discrimination by demonstrating that the height requirement resulted in the selection of applicants in a significantly discriminatory pattern, we.elizabeth., 87% of all women, as compared to 20% of all men, were excluded. This was sufficient to establish a prima facie case without a showing of discriminatory intent. The court was not persuaded by respondent’s argument that taller officers have the advantage in subduing suspects and observing field situations, so as to make the height requirement a business necessity.
(a) General –
Many height statutes for employees such as police officers, state troopers, firefighters, correctional counselors, flight attendants, and pilots contain height ranges, e.grams., 5’6″ to 6’5″. Although, as was suggested in § 621.2 above, many Commission decisions and court cases involve minimum height requirements, few deal with maximum height requirements. It is nonetheless conceivable that charges could be brought challenging a maximum height requirement as discriminatory. Such charges might have the following form.
Example (1) – R, police force, has a maximum height requirement of 6’5″. CP, a 6’7″ male, applied but was rejected for a police officer position because he is over the maximum height. CP alleges that this constitutes discrimination against him because of his sex (male) because of national statistics which show that women are on average shorter than men. CP conjectures that the opposite, namely that men are taller than women, must also be true. Accordingly, men must be disproportionately excluded from employment by a maximum height requirement, in the same manner as women are disproportionately excluded from employment by a minimum height requirement.
Example (2) – R 
, airlines, has a maximum 6’5″ height requirement for pilots. CP, a 6’6″ Black candidate for a pilot trainee position, alleges that he was rejected, not because he exceeded the maximum height, but because of his race (Black). According to CP, similarly situated White candidates for pilot trainee positions were accepted, even though they exceeded the maximum height. Investigation revealed that R did in fact accept and train Whites who were over 6’5″ and that R employed White pilots who exceeded the maximum height. R had no Black pilots, and no Blacks were accepted as pilot trainees.
Given that significantly more than instances strongly recommend, charge could well be presented centered on different treatment otherwise negative impression connected with an optimum peak specifications, and the Commission will have legislation across the case of new fees.
(b) Disparate Treatment –
Disparate treatment happens when a protected classification or category associate is treated less definitely than many other similarly centered personnel for factors prohibited lower than Title VII. (Look for § 604, Concepts out of Discrimination.) This earliest principle can be applied to help you costs connected with restrict top standards. For this reason, missing a valid, nondiscriminatory cause, discrimination might result about imposition of different limitation top criteria if any restrict height standards to own female rather than also situated male group. (Understand the examples for the § 621.3(a), above.)
Although there are no Commission behavior making reference to different therapy as a consequence of use of an optimum top specifications, new EOS can use the essential disparate medication investigation established for the § 604, Ideas away from Discrimination, to resolve like charges and as a guide to creating the latest LOD.
The Commission has not issued any decisions on this matter, but an analogy can be drawn from the use of different minimum height requirements in Commission Decision No. 79-19, supra.
