ALSPAUGH v. COMMISSION ON LAW ENFORCEMENT STANDARDS
Case Details
- Citation
- 246 Mich. App. 547
- Judge(s)
- Before: Hood, P.J., and Doctoroff and K. F. Kelly, JJ.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Michigan Court of Appeals affirmed summary disposition in favor of the Commission on Law Enforcement Standards, holding that gender-normed physical fitness standards for police academy candidates do not violate equal protection or civil rights laws because they serve the important governmental interest of avoiding disparate impact on female candidates and are designed as an inclusive measure rather than exclusionary.
Excerpt
ALSPAUGH v COMMISSION ON LAW ENFORCEMENT STANDARDS Docket No. 220156. Submitted February 5, 2001, at Detroit. Decided June 29, 2001, at 9:05 A.M. Aaron W. Alspaugh and Raymond Kqjawa brought an action in the Oakland Circuit Court against the Commission on Law Enforcement Standards, formerly known as the Michigan Law Enforcement Officers Training Council, alleging gender discrimination resulting from the defendant’s use of different physical fitness performance standards for men and women regarding a performance skills test that must be completed to attend a police academy and eventually become a viable candidate for certification as a police officer. The plaintiffs also alleged that if gender-norming the physical fitness performance standards is constitutionally sanctioned, then the defendant should also age-norm the performance standards to control for concomitant decreases in muscular strength, endurance, and aerobic capacity attributable to the aging process and that the failure to do so is unlawful age-based discrimination. The court, Rudy J. Nichols, J., granted summary disposition in favor of the defendant. The plaintiffs appealed. The Court of Appeals held-. 1. Ignoring the immutable physiological differences between males and females with regard to the performance skills test would disproportionately exclude female candidates from the pool of individuals eligible for certification as police officers. 2. Tests that control for inherent immutable characteristics between males and females and thus provide differing standards do not violate equal protection guarantees. 3. The performance skills test at issue is designed to assess general physical fitness, not to delineate the specific minimum fitness standards required to become a police officer. Gender norming ensures that the most physically fit female candidates are placed into the larger pool of qualified applicants from which different agencies may hire. Gender norming is a measure designed to include viable female candidates, not to exclude viable male candidates. The gender norming is an act of inclusion rather than exclusion. 4. The gender-norming practice serves the sufficiently important governmental interest of avoiding the potential for a disproportionate effect that a single standard would necessarily have on the female candidates in the area of employment, an important governmental interest, and is sufficiently related to the achievement of that interest. The practice does not violate the equal protection provisions of Const 1963, art 1, § 2 or the Civil Rights Act, MCL 37.2101 et seq. 5. The plaintiffs failed to establish the essential elements to sustain a viable claim of age discrimination; i.e., they failed to show that they had qualifications comparable to the person ultimately selected and that the determining factor in the decision not to hire them was their age. Affirmed. Constitutional Law — Equal Protection — Gender-Based Discrimination — Gender-Norming Test Procedures. The equal protection provisions of the constitution and the Civil Rights Act are not violated where a performance skills test developed by the Commission on Law Enforcement Standards to assess the general physical fitness of candidates for police academies uses different performance standards for males and females to control for the relative differences in strength because of the immutable physiological differences between the genders; the use of the gender-norming procedure serves the important governmental interest of avoiding the potential for the disproportionate effect on the employment opportunities of female candidates that a single standard would have and is sufficiently related to the achievement of that interest (Const 1963, art 1, § 2; MCL 37.2101 et seq.). Gabrian & Parks, PC. (by Dennis L. Gabrian), for the plaintiffs. Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Kristin M. Smith, Assistant Attorney General, for the defendant. Before: Hood, P.J., and Doctoroff and K. F. Kelly, JJ. K. F. Kelly, J. Plaintiffs Walter Alspaugh and Raymond Kujawa appeal as of right from the trial court’s decision granting defendant’s motion for summary disposition and dismissing their claims of gender and age discrimination. We affirm. I. OVERVIEW This appeal addresses the constitutional propriety of “gender-norming” physical fitness performance standards in conjunction with a preemployment physical fitness test adopted and implemented by the Michigan State Police. To attend the police academy and eventually become a viable candidate for certification as a police officer, the candidate must first successfully complete a performance skills test. The results of the test are gender-normed, ostensibly to control for the innate physiological differences between the genders, with the top scoring male and female candidates becoming eligible to attend the police academy. Plaintiffs contend that the gender-norming process, which specifies different performance standards for men and women, unfairly discriminates against them on the basis of their gender in contravention of the equal protection provisions of the Michigan Constitution and the state Civil Rights Act (hereinafter cra). Plaintiffs also allege that if gender-norming physical fitness performance standards is constitutionally sanctioned, then defendant should also “age norm” the performance standards. Plaintiffs contend that age norming is necessary to control for concomitant decreases in muscular strength, endurance, and aerobic capacity attributable to the aging process. Consequently, plaintiffs submit that defendant’s failure to age norm the performance standards results in unlawful age-based discrimination in violation of the equal protection provisions of the Michigan Constitution and the cra. Defendant maintains that the primary objective of the physical fitness skills test is to measure general physical fitness rather than establish the minimum physical requirements necessary for law enforcement officers. In other words, the test was designed to ascertain general fitness levels and, thus, separate the physically fit from the physically unfit, not to create minimum performance standards required to become a police officer. If a candidate does not pass the physical performance skills test, that candidate may retake the test as frequently as the candidate pleases until that individual receives a passing score. II. DEFENDANT’S PERFORMANCE SKILLS TEST Defendant, the Commission on Law Enforcement Standards (hereinafter coles), is the state agency authorized by statute to promulgate rules establishing the minimum level of physical fitness required for “recruitment, selection, appointment, and certification of law enforcement officers.” MCL 28.609(1)(a). Pursuant to that authority, the coles developed the performance skills test under the supervision and direction of a psychometrician, an industrial psychologist, and an exercise physiologist. The test itself includes six different activities designed to measure overall physical fitness vis-a-vis dynamic strength, explosive strength, speed, agility, and aerobic capacity. Both males and females perform the same six events. However, to account for the relative differences in strength between men and women due to the immutable physiological differences between the genders and to thus eliminate the potential for an adverse impact on female candidates, the council created different performance standards applicable to males and females. The method employed to accomplish this task, was to “norm” the candidates’ performance by gender so that females are compared with females and males are compared with males. In this way, it was possible to identify and select the most generally physically fit candidates from each group. These candidates were then placed into the larger pool of those individuals eligible to attend the police academy and eventually attain certification as police officers. in. THE PLAINTIFFS Plaintiffs Aaron Alspaugh and Raymond Kujawa are both currently employed as deputy sheriffs in the corrections division in Oakland County. Both Alspaugh and Kujawa took defendant’s performance skills test, did not receive passing scores, and, accordingly, neither of the plaintiffs became eligible to attend the police academy and eventually receive certification as police officers. However, both would have received passing scores if their respective performances had been evaluated pursuant to the standards applicable to the female candidates. Thus, plaintiffs argue that defendant’s “gender-norming” procedure amounts to intentional gender-based discrimination in violation of the equal protection provisions contained in art 1, § 2 of the Michigan Constitution and the cra. Plaintiffs also claim that if gender norming passes constitutional muster, then the performance standards should also be “age normed” to account for the relative decrease in muscular strength and general fitness as a result of the aging process. Plaintiffs sought injunctive and declaratory relief for the alleged violations. Plaintiffs appeal the trial court’s decision granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10) and further dismissing plaintiffs’ complaint in its entirety. We affirm. IV. STANDARD of review This court reviews de novo a trial court’s decision granting or denying a motion for summary disposition. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347; 597 NW2d 250 (1999). Incumbent on the court when considering a motion brought pursuant to MCR 2.116(C)(10) is to consider, in a light most favorable to the nonmoving party, all the documentary evidence, along with all reasonable inferences drawn therefrom, to determine whether a genuine issue of material fact exists upon which reasonable minds may differ. Wilcoxon, supra at 358. V. PLAINTIFFS’ CLAIMS OF INTENTIONAL GENDER-BASED DISCRIMINATION Plaintiffs argue that the performance skills test is not designed to assess general physical fitness, but, rather, is designed to measure the minimum physical skills necessary to be a police officer, and that gender-norming the scores gives preferential treatment to female candidates thus constituting unlawful affirmative action. Plaintiffs argue that gender norming to avoid statistical disparities by gender in passing rates is not substantially related to an important governmental interest and violates the Equal Protection Clause of the Michigan Constitution and the CRA. On the contrary, defendant argues that the justification for gender-norming the performance standards is to eliminate the disproportionate impact or the possibility of disparate-impact discrimination on women because of their physiological characteristics. Defendant maintains that ignoring the immutable physiological differences between males and females as regards the performance skills test would disproportionately exclude female candidates from that pool of individuals eligible for certification as police officers. We agree. A. APPLICABLE CONSTITUTIONAL AND STATUTORY PROVISIONS Article 1, § 2 of the Michigan Constitution provides in pertinent part: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The CRA expanded the constitutional classifications of “religion, race, color or national origin” to include age, sex, and marital status. MCL 37.2102(1) provides, in pertinent part, that “[t]he opportunity to obtain employment . . . without discrimination because of . . . sex ... is recognized and declared to be a civil right.” See also Neal v Dep’t of Corrections (On Rehearing), 232 Mich App 730, 739; 592 NW2d 370 (1998); Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 186; 387 NW2d 821 (1986) (recognizing that the CRA broadened the constitutional classifications to include age, sex, and marital status). In Neal, supra at 734, the Court acknowledged that “[t]he purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” The Michigan Constitution guarantees equal protection of the laws, which means that those who are similarly situated must receive the same treatment. In re Hawley, 238 Mich App 509, 511; 606 NW2d 50 (1999). Conversely, equal protection does not require the same treatment be given those that are not similarly situated. Id. Classifications based on gender are reviewed under the “intermediate” or “heightened-scrutiny” test and will pass constitutional muster only if the classification is “ ‘substantially related to an important governmental objective.’ ” Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218 (2000) (citation omitted); Gora v Ferndale (On Remand), 217 Mich App 295; 551 NW2d 454 (1996). However, as the Court in Neal observed: [M]erely because the state engages in a practice that treats men and women differently, it does not necessarily mean that it engages in unlawful gender discrimination. Rather, the test is whether the gender-based treatment serves a sufficiently important governmental interest and is substantially related to the achievement of that interest. [Neal, supra at 741.] In Dep’t of Civil Rights, supra at 202, our Supreme Court stated that “[f]acts and circumstances . . . play a large part in assessing the end-means relationship. While the relationship need not be perfect, it should be close.” If the classification at issue does not pass this intermediate level or heightened scrutiny, the classification is constitutionally infirm and, thus, must fall. With regard to gender discrimination, those federal civil rights cases interpreting title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq., and as amended, 42 USC 1983, although not controlling, provide persuasive authority for considering and resolving cases brought pursuant to Michigan’s Civil Rights Act. Bedker v Domino’s Pizza, Inc, 195 Mich App 725; 491 NW2d 275 (1992). Accordingly, we turn to those cases for general guidance. In Lynch v Freeman, 817 F2d 380, 389 (CA 6, 1987), the court stated that “[a]natomical differences between men and women are ‘immutable characteristics,’ just as race, color and national origin are immutable characteristics.” Thus, the issue becomes whether tests that control for inherent “immutable” characteristics between males and females and thus provide differing standards violate equal protection. We hold that they do not. In United States v City of Wichita Falls, 704 F Supp 709 (ND Tex, 1988), a case cited and relied on by plaintiffs, the court considered two separate and distinct tests: the physical agility test and the physical assessment test. Whereas the physical agility test was “a test of specific strengths and motor abilities directly related to the accomplishment of police functions,” id. at 711, the physical assessment test was employed as a screening mechanism to analyze “the general fitness of an individual instead of an individual’s ability to perform certain tasks.” Id. at 714 (emphasis added). The United States alleged that the physical assessment test discriminated against women in violation of the provisions of a consent decree that enjoined the city from “engaging in any act which had the purpose or effect of discriminating against any applicant ... for employment with the City of Wichita Falls Police Department because of their sex.” Id. at 710. The court disagreed, stating that discrimination based on gender would be “impossible” relative to the physical assessment test because “[although women and men take the same test, the standards against which they are compared are not the same. Women are compared against women and men are compared against men.” Id. at 714 (emphasis added). The court went on to note that the physical assessment test at issue was validated through “ ‘construct validity,’ meaning that the test accurately identifies characteristics necessary to perform a job.” Id. To that end, the court noted that it is “incontrovertible that police officers must be in good physical condition to perform their job.” Id. B. ANALYSIS In the case at bar, defendant’s practice of gender-norming physical fitness performance standards creates a gender-based classification. However, as the Neal Court observed, that alone is not sufficient to establish illicit gender-based discrimination. Gender-based classifications are subject to heightened scrutiny and will overcome the constitutional challenge if substantially related to an important governmental interest. Like the physical assessment test employed in Wichita Falls, the documentary evidence submitted in the case sub judice definitively establishes that the performance skills test at issue herein is a test designed to assess general physical fitness, not to delineate the specific minimum fitness standards required to become a police officer. Gender norming ensures that the most physically fit female candidates are placed into the larger pool of qualified applicants from which different agencies may hire. Reviewing plaintiffs’ claim of gender-based discrimination occasioned by norming performance standards according to gender, those courts that make a distinction between inclusive procedures designed to increase the number of qualified applicants and those procedures designed to exclude members of certain groups are particularly insightful. As one court astutely observed, “non-discrimination is the foundation of inclusion, while discrimination is a basis of exclusion.” Shuford v Alabama State Bd of Ed, 897 F Supp 1535, 1552 (MD Ala, 1995). Indeed, ensuring the largest pool of qualified candidates is a desirable goal. In fact, “[a]n inclusive recruitment effort enables employers to generate the largest pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded from employment. This not only allows employers to obtain the best possible employees, but it ‘is an excellent way to avoid lawsuits.’ ” Duffy v Wolle, 123 F3d 1026, 1039 (CA 8, 1997) (citations omitted). The only harm wrought by ensuring the largest possible pool of qualified candidates is increasing competition between and among the most capable applicants for the position. The Shuford court recognized that techniques of inclusion do not give rise to the traditional equal protection or title VII analysis employed by those courts analyzing techniques designed to exclude. Although not confronted with an affirmative action program designed to remedy past discrimination against women within the Michigan State Police Department, the inclusive/exclusive dialogue is.nonetheless instructive in considering the issues raised in the case at bar. Defendant’s gender norming the performance skills test to determine the most physically fit female candidates relative to their gender is not designed to exclude viable male candidates, but rather, is a measure designed to include viable female candidates. As the court in Shuford explained, “[ejxpanding the pool is an inclusive act. . . . Exclusion occurs if . . . the best candidate from the expanded pool fails to get the job because he was passed over for a woman. This can only happen at the selection stage, which occurs after the pool expansion.” Shuford, supra at 1553 (emphasis added). Defendant’s practice of gender-norming the performance skills test is employed to segregate the most physically fit candidates within each respective group by controlling for the innate physiological differences between the genders and operates to expand the entire pool of qualified applicants. Thus, defendant’s practice of gender-norming the performance skills te
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