In Blake v. Town of La, 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.e., 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) Standard –
Many height statutes for employees such as police officers, state troopers, firefighters, correctional counselors, flight attendants, and pilots contain height ranges, elizabeth.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.
Once the significantly more than instances highly recommend, charges could be framed according to different therapy otherwise bad impression of a max level requirements, in addition to Percentage might have legislation along side matter of brand new fees.
(b) Disparate Treatment –
Different procedures happens when a protected group otherwise class representative are addressed less absolutely than other furthermore founded professionals to have reasons blocked below Identity VII. (See § 604, Ideas off Discrimination.) Which basic concept can be applied so you can charge connected with maximum top requirements. Hence, missing a valid, nondiscriminatory need, discrimination might result from the imposition various maximum level criteria if any restrict top standards to own ladies in the place of furthermore established men staff. (See the examples into the § 621.3(a), more than.)
Although there are not any Percentage choices making reference to different treatment resulting from entry to an optimum peak demands, the latest EOS can use the basic different cures analysis set forth during the § 604, Theories away from Discrimination, to respond to such charge and as the basics of writing the new 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.
