By Rick Gautschi
In State of Ariz. v. City of Cottonwood, 115 FEP Cases 998, No. CV-11-2-1576-PHX-GMS, July 20, 2012, D. Az., sometime around 2000, as the result of agreements with the Arizona Peace Officers Standards and Training Board (AZ POST) and other law enforcement agencies in Arizona, Fitness Intervention Technologies (FIT) conducted a study for the purpose of developing a physical fitness test for law enforcement officers. Subsequently, FIT presented the test to AZPOST, whose director rejected the use of the test out of a concern that if administered, it was likely to have a disparate impact on women. In December 2006, the City of Cottonwood (City) Police Department (CPD) adopted a general order that required incumbent officers and applicants for officer positions to pass the FIT physical fitness test. The policy gave incumbent officers three years to pass the test. The policy was silent as to officers who applied for promotions. Regardless, CPD’s Chief added passing the test to the department’s requirements for promotion. In early 2007, Monica Kuhlt (Ms. Kuhlt) applied for promotion to sergeant. She took the physical fitness test but did not pass all the elements of it. In May 2008, she applied for an open sergeant position, but again she failed the physical fitness test and suffered a back injury in the process of taking the test. She then filed a claim of discrimination with a state agency. In February 2009, the agency dismissed the claim but on April 1, 2009, reinstated it at her request. Subsequently, she supplied a doctor’s note that recommended substituting, for her, an aerobic activity other than the test’s required 1.5 mile run. CPD sent her to another doctor who opined that because of her inability to run, she was not fit to be a police officer. A lawsuit for sex discrimination and retaliation for having opposed sex discrimination followed.
Although the number of women who took the physical fitness test was small compared to the number of men who took the test, according to the court, the disparity in the pass rates for men and women indicated that the test had a disparate impact on women.
Further, the City had admitted that the test had a disparate impact on women. Because there was no evidence that the physical fitness test was reasonably related to the job of a police sergeant or that its use satisfied a business necessity, the court ruled that the City engaged in sex discrimination by requiring passage of the physical fitness test for promotion. Because a jury could conclude that CPD’s requiring Ms. Kuhlt to undergo a medical exam after she requested reinstatement of her discrimination claim, the court decided that there needed to be a trial on that claim.
