Smith v. Troyan

• Decision Date: 03 July 1975
• Docket Number: 73-2227,Nos. 73-2226,s. 73-2226
• Citation: 520 F.2d 492
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: 10 Fair Empl.Prac.Cas. 1380, 10 Empl. Prac. Dec. P 10,263 Elizabeth A. SMITH, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. Robert TROYAN et al., Defendants-Appellants. Elizabeth A. SMITH, on behalf of herself and all others similarly situated, Plaintiff-Cross-Appellant, v. CITY OF EAST CLEVELAND et al., Defendants-Cross-Appellees.

Page 492

520 F.2d 492

10 Fair Empl.Prac.Cas. 1380,

10 Empl. Prac. Dec. P 10,263

Elizabeth A. SMITH, on behalf of herself and all others

similarly situated, Plaintiff-Appellee, v. Robert TROYAN et al., Defendants-Appellants.

Elizabeth A. SMITH, on behalf of herself and all others

similarly situated, Plaintiff-Cross-Appellant, v. CITY OF EAST CLEVELAND et al., Defendants-Cross-Appellees.

Nos. 73-2226, 73-2227.

United States Court of Appeals, Sixth Circuit.

July 3, 1975.

Henry B. Fischer, Director of Law, East Cleveland, East Cleveland, Ohio, James P. Mancino, Cleveland, Ohio, Charles T. Riehl, Walter, Haverfield, Buescher & Chockley, Cleveland, Ohio, for Robert Troyan and others.

Rita Page Reuss, Chief Counsel, Women's Law Fund, Jane M. Picker, Cleveland, Ohio, Michael L. Haase, Cleveland, Ohio, for Elizabeth A. Smith.

Before WEICK, CELEBREZZE and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Plaintiff-appellee, a five-foot, five-inch, 136-pound black woman, filed in district court a class action against certain "city defendants" ¹ and certain "federal defendants" ² charging that the city's use of minimum height and "proportionate" weight requirements in hiring its police officers unconstitutionally discriminated against her on the basis of sex and that the city's similar use of the Army General Classification Test (AGCT) unconstitutionally discriminated against her on the basis of race and sex. ³

The district court found that the height and weight requirements discriminated against women, that the AGCT discriminated against blacks, and that, as a matter of state law, a veteran's preference had been applied improperly. The court, however, found insufficient evidence that the AGCT discriminated against women. 363 F.Supp. 1131 (N.D.Ohio 1973).

Defendants have appealed from the district court's findings of unconstitutional discrimination as to the height and weight requirements and as to the AGCT. ⁴ Plaintiff has cross-appealed

from the district court's refusals to find that the AGCT unconstitutionally discriminates against women and to award attorney's fees.

HEIGHT REQUIREMENT

East Cleveland Administrative Code § 123.07(d) requires police applicants to "be at least five feet, eight inches in height . . . ." The district court found no "rational support" for and invalidated the requirement. A detailed, in-depth discussion probing the height requirement's relationship, or lack thereof, to physical strength, physical fitness, physical agility, ability to view crowds, ability to drive cars, arm reach, ability to absorb blows, and psychological advantage, however, preceded the court's finding.

On appeal, defendants claim that the height requirement, though disqualifying disproportionately more women than men, is a non-gender-based classification and, consequently, constitutionally permissible through the relaxed standard of equal protection review. Even if the height requirement were considered a gender classification, defendants claim it would be constitutionally permissible.

Few reported opinions have directly assessed the constitutionality of height requirements. See Callis, Minimum Height and Weight Requirements as a Form of Sex Discrimination, 25 Labor L.J. 736 (1974). Hardy v. Stumpf, 37 Cal.App.3rd 958, 112 Cal.Rptr. 739 (1st Dist. 1974), invalidating a five-foot, seven-inch requirement for Oakland police officers, relied heavily on the instant district court's reasoning and on the "suspect" character of the height classification. Other height requirements for various occupations have been invalidated on the basis of state statutes. See, e. g., New York State Div. of Human Rights v. New York City Dep't of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (1971) (municipal lifeguard), New York State Div. of Human Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, aff'd, 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856 (1972) (baseball umpire), and Moore v. City of Des Moines Police Dep't, 2 CCH Empl.Prac.Guide P 5184 (CP No. 881, Iowa Civil Rights Comm'n, filed July 11, 1973) (police). See also In Re Shirley Long, U.S. Civil Serv. Comm'n Bd. of Appeals & Review (Nov. 13, 1972). Of four courts which have refused to invalidate police height requirements, only one sustained the height requirement in light of evidence of the sexually disparate impact of the height requirement. Compare Hail v. White, 8 CCH Empl.Prac.Dec. P 9637 (N.D.Cal.1973) (sustaining height requirement against Title VII claim), with Castro v. Beecher, 459 F.2d 725, 734 (1st Cir. 1972), Arnold v. Ballard, 390 F.Supp. 723, 738 (N.D.Ohio 1975), and Mulligan v. Wilson, 110 N.J.Super. 167, 264 A.2d 745 (1970). Still other courts have found it unnecessary to decide the legality of certain height requirements. See, e. g., Pond v. Braniff Airlines, Inc., 500 F.2d 161, 162 (5th Cir. 1974), rev'g 6 CCH Empl.Prac.Dec. P 8756 (N.D.Tex.1973); Lum v. New York City Civil Serv. Comm'n, 9 CCH Empl.Prac.Dec. P 9947 (S.D.N.Y.1975).

The Supreme Court and this court, however, have recently dealt often with gender or gender-related classifications. Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), recognized that for constitutional purposes a classification even with an impact exclusively on one gender need not necessarily be treated as if an explicit gender classification.

"While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally "The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes." 417 U.S. at 496-97 n. 20, 94 S.Ct. at 2492.

free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis . . . .

See Comment, Geduldig v. Aiello, Pregnancy Classifications and the Definition of Sex Discrimination, 75 Colum.L.Rev. 441, 443-48 (1975) (hereinafter Pregnancy Classifications). Height requirements create even less exclusively gender-related classes. While one of the two Geduldig classes was exclusively of one gender, neither of the East Cleveland classes is exclusively of one gender. The class of persons too short to be eligible consists approximately of 95 per cent of the women and 45 per cent of the men between the eligible ages; the class of persons tall enough to be eligible consists approximately of five per cent of the women and 55 per cent of the men. ⁵

Like the Supreme Court in Geduldig, lower federal courts have sustained state action disproportionately, or exclusively, affecting one gender. See, e. g., Reynolds v. McNichols, 488 F.2d 1378, 1383 (10th Cir. 1973) (city "hold and treat" ordinance for prostitutes); Bond v. Virginia Polytechnic Institute & State University, 381 F.Supp. 1023 (W.D.Va.1974) (university student health plan's failure to provide for gynecological examinations and pap tests).

Even if the height requirement is viewed as gender discrimination, see Satty v. Nashville Gas Co., 384 F.Supp. 765, 771 n. 1 (M.D.Tenn.1973), aff'd --- F.2d --- (6th Cir. 1975), it must be sustained if it "bears a rational relationship to a (legitimate) state objective." Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). ⁶ The Supreme Court, and this court, have recently upheld even explicit gender classifications. See, e. g., Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Robinson v. Board of Regents, 475 F.2d 707 (6th Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2382, 40 L.Ed.2d 758 (1974). More importantly perhaps, the classifications the Supreme Court has found unconstitutional have been explicit gender classifications, where the members of the resulting classes have, by definition, only their gender in common. See, e. g., Stanton v. Stanton, --- U.S. ---, 95 We think the district court erred in finding no "rational support" for the height requirement. If East Cleveland's height requirement lacks "rational support," so do height requirements elsewhere. Plaintiff's own exhibits demonstrate that forty-seven of forty-nine state highway patrols and police forces and twenty-nine of twenty-nine municipal police departments surveyed have, or at least then had, height requirements (ranging from five feet, six inches to six feet). See Note, Height Standards in Police Employment & the Question of Sex Discrimination: the Availability of Two Defenses for a Neutral Employment Policy Found Discriminatory Under Title VII, 47 So.Calif.L.Rev. 585, 586-9 (1974) (hereinafter Height Standards). That certain government entities, including the Wisconsin highway patrol, the Pennsylvania state police (2 CCH Empl.Prac.Guide P 5177 (1973)) and the Law Enforcement Assistance Administration (33 Fed.Reg. 6415 (March 9, 1973)), no longer utilize or favor height requirements cannot rebut the nearly universal use of height requirements in hiring police. Such widespread use, of course, does not compel a finding of constitutionality, but "is plainly worth considering" in determining the "rationality" and constitutionality of height requirements. Manning v. Rose, 507 F.2d 889, 892 (6th Cir. 1974), quoting Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, --- U.S. ---, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Frontiero...