Add Corpus Christie, Texas to the list.

“Disparate impact” discrimination is a subject in the news lately, and we spoke about it in our August 28th  and May 14th blogs. An example of “disparate impact” discrimination under Title VII was set out in a case filed by the EEOC against the City of Jacksonville, which alleged that the City put in place written examinations for the promotion of firefighters which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

The U.S. Department of Justice now reports that it has settled a similar case, this time with the city of Corpus Christi, Texas. It was alleged that the city police department discriminated against female job applicants by requiring them to complete and pass a demanding and extensive physical test which included pushups, situps, a 300-meter run and a 1.5-mile run.

There was nothing discriminatory about the test on its face but the results. The statistics showed that from 2005 to 2009, there was a statistically significant difference in pass rates between male and female applicants --19% for females and 63% for males.

In 2011 the city changed the cut-off score, but the results were the same -- now 33% pass rate for females, 82% pass rate for males, also statistically significant. In both cases women passed at a rate less than 80% the rate of men.

A proposed consent decree would require the city to scrap the physical abilities test and to develop a new selection procedure that is compliant with Title VII, as well as require the city to pay $700,000 as back pay to eligible female applicants who failed the challenged physical abilities test between 2005 and 2011.