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Physical Fitness Tests and Performance Standards, Part 2
In the first part of this article, we established that while the job of a law enforcement officer has multiple physical requirements, in most agencies, officers are not held accountable for the readiness to perform them. This article will address the nature and type of recommended testing and standards, their adverse impact on women and people over 40, the likely and unwanted legal effects of age and gender adjustments of standards which some use to combat the aforementioned adverse impact, relevant applications of Title VII, the ADA and the ADEA, and the programming necessary to support application of testing and standards.
In general, law enforcement agencies utilize two types of physical readiness tests. One type consists of the actual physical tasks required on the job, such as lifting, carrying, pushing, pulling, jumping, running, climbing, etc. We’ll call this type a job-task simulation test (JTST). It is easy to see that a JTST is job related. However, this type of testing has drawbacks.
First, they tend to account for only 20 to 25 percent of all the essential physical functions. They are logistically challenging and are more likely to cause injuries. Trying to remediate an officer who fails this type of test is more difficult because you may not know what the weakness is. Officers don’t train by running through JTSTs. Finally, while agencies cannot require good health in any event, there is no known relationship between performance on a JTST and reduction of health risk.
Fitness tests such as the bench press, push ups, sit ups and a 1.5-mile run, on the other hand, are a little harder to understand as being job related. The key is to establish that the tests used in the fitness battery measure the components of fitness necessary to perform the essential physical tasks, and that the standards predict who can and who cannot perform at the minimum level of safety and effectiveness.
Every essential physical function has one or more of the components of fitness as an underlying and predictive factor. An officer who fails a fitness test can be more readily remediated because you know exactly what the weakness is. Fitness batteries are less likely to cause injuries and can be completely equipment free. Finally, there are well documented relationships between higher levels of fitness and healthier lifestyles.
The results of dozens of physical fitness studies in law enforcement clearly show that validated physical fitness requirements will result in adverse impact on women in general and men over 40. However, data also makes clear that this impact is most pronounced amongst officers who do little or no fitness training. Studies repeatedly demonstrate that the levels of fitness required to perform the essential physical functions at the minimum level of safety and effectiveness are achievable by most women and older people with as little as three hours of training per week.
Age and Gender-Based Standards
Does your agency assign calls based on age or gender, or is everyone expected to be able to perform all of the essential physical tasks? Does it make any sense to have different fitness standards for different groups of officers doing the same job? Even if these questions don’t grab you, law and liability issues should. Under the ADA, a person with a qualifying disability who can perform the essential functions of the job at “the” minimum level of safety and effectiveness cannot be denied employment because of their disability. There are three key points here.
First, to be protected by the ADA, a person must have a qualifying disability. Lack of fitness is not a qualifying disability. Second, the ADA covers only those who can perform the essential job functions: those who can do the job. Third, there can’t be 10 different minimum levels of safe and effective performance. The clear language of the law says “the” minimum.
Furthermore, the Civil Rights Act tells us that for employment-based decisions such as hiring, firing, promotions, special assignments, etc., it is illegal to use altered, different or adjusted cutoff scores based on race, color, religion, national origin or gender. The clear language of the law tells us you cannot have fitness standards that are different for men and women who are doing the same job. Using multiple standards has the legal and scientific effect of invalidating the standards.
Next month we cover program options, considerations and the characteristics of agency physical fitness programs that have proven successful.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at email@example.com.
Kevin Lowry recently retired as a chief from the Nassau County, N.Y., Police Department. He is a qualified attorney, arbitrator and hearing officer in matters of personnel and employment. Lowry has held supervisory and management positions in patrol, investigations and administration. He can be reached at Kevin@CALLaCOP.com.
Bob Hoffman served as director of training for the Army’s Soldier Physical Fitness School and helped develop the Army’s Total Fitness Program. He has participated in physical fitness validation studies for more than 150 law enforcement agencies. He can be contacted at firstname.lastname@example.org.
Published in Law and Order, May 2011
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