Hardy v. Stumpf

• Decision Date: 15 March 1974
• Court: California Court of Appeals Court of Appeals
• Parties: , 7 Fair Empl.Prac.Cas. (BNA) 1091, 7 Empl. Prac. Dec. P 9309 Veragene HARDY, Individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. William F. STUMPF et al., Defendants and Respondents. Civ. 32689.

Page 739

112 Cal.Rptr. 739

37 Cal.App.3d 958, 7 Fair Empl.Prac.Cas. (BNA) 1091,

7 Empl. Prac. Dec. P 9309

Veragene HARDY, Individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. William F. STUMPF et al., Defendants and Respondents.

Civ. 32689.

Court of Appeal, First District, Division 3, California.

March 15, 1974.

Hearing Denied May 8, 1974.

Clifford C. Sweet, Suzanne Mounts, Thomas L. Fike, Legal Aid Society of Alameda County, Oakland, Carolyn E. Jones, Berkeley, for plaintiff and appellant.

Edward A. Goggin, City Atty., William C. Sharp, Deputy City Atty., Oakland, for defendants and respondents.

HAROLD C. BROWN, Associate Justice.

This is an appeal from a judgment denying a petition for a writ of mandate instituted by one Veragene Hardy, for herself, and all other women who would be interested in being police officers in the Oakland Police Department.

Appellant challenged the requirement of the Oakland Police Department that applicants for the position of patrolman had to be male, weigh 135 pounds and be 5 feet 7 inches tall. She also challenged as a denial of equal protection the requirement that applicants for the position of policewoman have more education and better eyesight than applicants for the position of patrolman.

The trial judge found that the size requirement for the position of patrolman was valid. He declined to rule on the question of whether the requirement that applicants be male was invalid on the ground that appellant was not large enough to meet the size requirements. Since this was a class suit brought on behalf of all women who wished to become patrolmen, the trial court should have decided the validity of the sex requirement. The issue has now become moot, however, since the City Council of Oakland, by ordinance and board resolution, has changed the requirements that limited the job of patrolman to males. ¹ There is now but one category, that of 'Police Officer,' to which all qualified men and women may apply. One of the qualifications is a height of at least 5 feet 7 inches and a weight of 135 pounds.

The sole issue to which we address ourselves, therefore, is the question of whether the height and weight requirement impermissibly discriminatesagainst women as a class. Appellant has chosen a correct procedural means to present this issue for mandamus 'is an appropriate remedy for the enforcement of a civil right.' (Wrather-Alvarez etc., Inc. v. Hewicker, 147 Cal.App.2d 509, 511, 305 P.2d 236, 238.)

It is well settled under present law that a person, including a female, does have the right not to be discriminated against in employment. ² (U.S.Const., 14th Amend.; Cal.Const., art. I, §§ 11, 21; Cal.Const., art. XX, § 18; Lab.Code, §§ 1410--1432, amended in 1970 to include Sex as a prohibited basis for discrimination in employment; Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; tit. VII, Federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000e--2(a).) In Sail'er Inn, Inc. v. Kirby, Supra, 5 Cal.3d 1, 16--18, 95 Cal.Rptr. 329, 339, 485 P.2d 529, the California Supreme Court discussed the proper standards for reviewing an employment classification based on sex when considering an equal protection argument. The court concluded that the application of the strict scrutiny standard of review applied to such a discrimination both because a fundamental right is involved, that of employment, and also because any classification based upon sex should be treated as suspect. (See also Frontiero v. Richardson, 411 U.S. 677, 682, 93 S.Ct. 1764, 36 L.Ed.2d 583.) This standard of review was described as follows: "In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. (Citations.)

"On the other hand, in cases involving 'suspect classifications' or touching on 'fundamental interests,' the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. (Citations.) Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a Compelling interest which justifies the law but that the distinctions drawn by the law are Necessary to further its purpose.' (Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784--785, 87 Cal.Rptr. 839, 471 P.2d 487.)' (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 16--17, 95 Cal.Rptr. 329, 339, 485 P.2d 529.)

A classification may be considered discriminatory against one sex or another even though it does not do so directly. Thus a seemingly neutral job requirement which has the effect of disqualifying a disproportionate number of one sex is discriminatory and must be viewed under the strict scrutiny test. (Smith v. City of East Cleveland, D.C., 363 F.Supp. 1131, 1136--1138.) When scrutinizing suspect classifications, the courts may not accept stereotyped generalizations to justify dissimilar treatment but must review the evidence upon which these generalizations are based. (Frontiero v. Richardson, supra, 411 U.S. 677, 682--688, 93 S.Ct. 1764, 36 L.Ed.2d 583.) In reviewing the requirement that Cleveland policemen be 5 feet 8 inches in hight, a federal court recently stated: 'Applying the Frontiero standard of review to this case, the Court rejects as an adequate justification the unsupported generalization that large male policemen will perform better than short or female policemen. The Court holds that to sustain requirements which exclude nearly all women from employment as police officers, the 5 feet 8 inch and 150 pound minimums must be demonstrably related to job performance.' (Smith v. City of East Cleveland, supra, at p. 1139 of 363 F.Supp.)

The court in Smith was unable to find any rational support from the evidence before it for the height and weight requirements for Cleveland police officers and concluded the requirements were based solely on the stereotype of the large male police officer. (363 F.Supp. at p. 1144.) The court further noted that it had been unable to locate any other authority which had found a rational relationship between the size requirements for police officers and the job they performed.

'It is significant that the Court has been unable to find any agency or authority which has reviewed the relationship between the height and weight requirement and police work on the basis of facts and which has arrived at a contrary conclusion. The Law Enforcement Assistance Administration refuses to permit departments receiving its funds to retain height requirements unless they first show through supportive factual data such as professionally validated studies that the requirement is an 'operational necessity' for designated job categories. 38 Fed.Reg. 4553, G. 5 (March 8, 1973). The Administration's Guidelines provide in part: The use of minimum height requirements, which disqualifies disproportionately women and persons of certain national origins and races . . . will be considered violative to this Department's regulations prohibiting employment discrimination. Id. G. 4. The Iowa Civil Rights Commission after a finding that the height and weight requirements for the Des Moines Police Department had a disparate effect against women and had no rational basis, ordered the Police Department to cease using it 'until such time as they are properly able to validate in a professional manner such requirements for job-relatedness.' Nancy L. Moore v. City of Des Moines Police Department, CP #881, Iowa Civil Rights Commission (July 11, 1973). The Pennsylvania Attorney General ordered a 5 feet 6 inch requirement for state police suspended until it could be demonstrated as related to job performance because it excluded women and some minority groups. (CCH) EPD 5177 (1973).' (Smith v. City of East Cleveland, supra, 363 F.Supp. 1131, 1144.)

Appellant has cited to this court two other cases in which it was found that the employer had not demonstrated a rational relationship between size requirements and job requirements of positions similar to that a policeman. In State Division of Human Rights v. New York City Department of Parks and Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (First Dept. 1971), the size requirements (5 feet 7 inches, 135 pounds) were found not to be sufficiently related to the performance of the duties of a lifeguard. In In re Shirley Long, the United States Civil Service Commission Board of Appeals and Review (Nov. 13, 1972), found that the size requirements (5 feet 8 inches with proportionate weight) were not sufficiently related to the performance of the duties of a Park Police Officer with the National Park Service.

Respondents distinguish these cases from the case at hand on the ground that the finder-of-fact of those cases had found that there was not sufficient evidence of job relatedness. Clearly, the same argument would be made regarding the Smith case, a case decided too recently to appear in the briefs, for that was decided by a Federal District Court. Respondents argue that this court is confined to the substantial evidence rule on review and that the record contains sufficient evidence to sustain the findings of the trial court.

Respondents cite Castro v. Beecher, 334 F.Supp. 930 (D.C.Mass.1971), where the court pointed out by way of dictum that '(i)t is probable that while height is not Determinative of fitness to be a policeman, any more than it is of fitness to be an athlete or a general, it is Significantly related to fitness to be a policeman, as it is not significantly related to being a judge or a scientist. A policeman of average height or taller may not be more effective than a short one in persuading children, drunks, rioters, and obstreperous persons to obey promptly, he may not be physically stronger, and he may not even look more...