Issues in Employment Law

September 2002

Where businesses use a hiring criterion that results in a disparate male to female hiring ratio, there must be a "business necessity" that requires the criterion.

Employment practices that result in significantly higher rates of male hirings than female hirings may be subject to a "disparate impact challenge" in violation of the Civil Rights Act of 1991. Employers should review their hiring practices and employee makeup and consult us to verify their compliance with the Act.

In Lanning v. SEPTA (No. 01-1040), the Third Circuit Court of Appeals found that the physical fitness test used in employing police officers was a reasonable business necessity, even though the 1.5 mile run requirement resulted in a large percentage of males and a small percentage of females passing the test. Police officers need to be sufficiently physically fit to effectively perform their jobs for the safety of the community. The court stated that the cut-off score must not be unreasonably high, and that any standards used must be reasonable or the hiring practices would violate the Act if they resulted in a disparate ratio.