Example (2) – Weight as an immutable feature – R, an airline, has a policy requiring cabin crew to meet proportionate size/weight requirements based on national charts. CP, a Black candidate who was not hired for a vacant flight attendant position, filed a lawsuit alleging alleged adverse effects based on race. According to CP, black women weigh proportionately more in class than white women because of a trait specific to their race and not under their personal control. Accordingly, CP argues that standard height/weight limits disproportionately exclude Black women from flight attendant positions, unlike White women. The research found that although only two of R`s 237 female flight attendants are black, there is no statistical or other evidence that black women as a class weigh more than white women. (Whether there are any adverse reactions in this situation is not a matter for CDP; therefore, the Office of Legal Counsel, Guidance Division, should be contacted if this occurs.) Example (3) – Specified partial treatment – The CPs, restaurant employees, file a lawsuit alleging that they are discriminated against by R because they require all their employees to maintain the correct weight in relation to height based on the national height/weight tables. CPs argue that, while externally neutral, this rule disproportionately affects it, since women, unlike men, are more likely to exceed the maximum permissible weight because women have an inherent inability to reduce. Given that this is not a legally unique characteristic of women, or at least protected by Title VII, and that there is no other basis for concluding that women are more likely to be overweight than men, there is no reason for EOS to pursue this charge. In Decision No. 80-5 (unpublished), the Commission found that the available statistical data were insufficient to conclude that, unlike white women, whose weight is unevenly distributed, black women are disproportionately excluded from hostess positions because of their physical measures. In this case, a black woman was rejected because she had exceeded the maximum allowable hip size in terms of size and weight.

In many cases, as in Dothard v. Rawlinson, op. cit. cit., minimum requirements are imposed based on height and weight because of their theoretical relationship to force. Implicitly, taller and heavier people are also physically stronger than their smaller, lighter counterparts. However, such comparisons are simply unfounded. And so the court in Dothard suggested that “if the professional standing identified by the [defendants] is bona fide, its purpose could be achieved by accepting and validating a test for candidates that directly measures strength.” Instead of proportional, minimum, height/weight or height standards as the basis for candidate verification, employers may also try to rely on various physical abilities or agility tests. The imposition of such tests may lead to the exclusion of a disproportionate number of women and, to a lesser extent, other protected groups on the basis of their sex, national origin or race. Phillipa Law doesn`t need to stretch her neck too much to kiss her husband Jude Law because she`s only an inch and a half away from reaching his waist.

The sexy physiologist is 5 feet 10 inches (178 cm), making her perhaps the perfect complement for Jude in terms of company. In Schick v. Bronstein, 447 F. Supp. 333, 16 EPD ¶ 8247 (n.y. n.a. 1978), it was concluded that the application of different minimum height requirements for men compared to women by a police authority constitutes discrimination on the basis of sex. Example (1) – R, a police service, used to select candidates strictly following proportional minimum height and weight requirements on the assumption that tall, well-built officers were physically stronger and therefore better able to perform all the duties of the job. When R realized that a large number of women, Hispanics and Asians were automatically excluded by the 6` and 170 lbs standard, R replaced the height/weight requirement with a physical/agility test. The unvalidated test required candidates to carry a 150-pound sandbag up the stairs and climb a 14-foot wooden wall, among other things.

Of the next class of 150 candidates, 120 men and 30 women, only two women met the wall requirement, and none met the sandbag requirement. On the other hand, 5 of the men met both requirements. CP, a woman who broke through the wall but not the sandbag requirement, filed a lawsuit alleging gender discrimination because the physical/agility test disproportionately excludes a large number of women and is not justified by the necessity of the business. Commission Decision No. 76-31, CHC Employment Practices Guide ¶ 6624, the Commission found no evidence of negative effects on women in relation to a simple unfounded claim of refusal of employment based on sex, due to a minimum size requirement, where there was no size neutral policy and no one had ever been rejected on the basis of size. There was also no evidence of different treatment. The previous incumbent, the elected official and the accusing party were all women, and there was no evidence that a lesser man would not have been rejected equally. The same reasoning applies to situations where the respondent introduced physical agility tests to replace the abolished proportional height/weight requirements. Justizbeamte v. Kommission für den öffentlichen Dienst, 335 F. Supp.

378, 11 EPD ¶ 10,618 (N.D. Cal. 1975). The physical agility test, as designed, primarily measured upper body strength and therefore disproportionately excluded a large number of candidates. *See, for example, the vital statistics information in Appendix I, which shows differences in national averages of height and weight by sex, age and race.