Smith v. Troyan, Nos. 73-2226

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore WEICK, CELEBREZZE and PECK; JOHN W. PECK
Citation520 F.2d 492
Parties10 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.
Docket Number73-2227,Nos. 73-2226
Decision Date03 July 1975

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.

Page 493

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

Page 494

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

Page 495

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

"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.

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

Page 496

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 v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 383 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Like Geduldig, however, the members of the classes in Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), aff'g 465 F.2d 1184 (6th Cir. 1972), had more (their pregnancies or lack thereof) in common than their genders, but the Supreme Court, instead of equal protection analysis, relied upon the "fundamental" choice to have a child to invalidate mandatory pre- and post-partum leaves. See 94 S.Ct. at 802 (Powell, J., concurring in result); Pregnancy Classifications, supra, at 454-55. The Court, however, found "no rational relationship" between the mandated leaves and "the valid state interest of preserving continuity of (educational) instruction." 94 S.Ct. at 798.

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...

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39 practice notes
  • Hull v. Cason
    • United States
    • California Court of Appeals
    • January 7, 1981
    ...other arduous duties of his employment. A similarly unpersuasive argument was answered by the court of Smith v. Troyan (6th Cir. 1975) 520 F.2d 492, 496 (cert. den., 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385), in this manner: "That an occupational [114 Cal.App.3d 374] function consumes a ......
  • Leag. of U. Latin Am. Citizens v. City of Santa Ana, No. CV 74-767-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 22, 1976
    ...constitute the kind of adverse impact necessary for a prima facie case. As the Sixth Circuit Court of Appeals stated in Smith v. Troyan, 520 F.2d 492, 497-98 (1975), "Though general ability, or intelligence, tests have often been invalidated for their racially disproportionate impacts . . .......
  • Brown v. New Haven Civil Service Bd., Civ. No. N-78-234.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 27, 1979
    ...Cir. 1978), aff'g 446 F.Supp. 361 (E.D.Va. 1977); Rule v. Ironworkers Local 396, 568 F.2d 558, 565 n. 10 (8th Cir. 1977); Smith v. Troyan, 520 F.2d 492, 497-98 (6th Cir. 1975); Lee v. City of Richmond, 456 F.Supp. 756, 771 (E.D.Va.1978); cf. Kirkland v. New York State Department of Correcti......
  • Blake v. City of Los Angeles, Nos. 77-3595
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 2, 1979
    ...Smith v. City of East Cleveland (N.D.Ohio 1973) 363 F.Supp. 1131, Rev'd in part, aff'd in part sub nom. Smith v. Troyan (6th Cir. 1975) 520 F.2d 492. 6 The EEOC guidelines are designed to help employers determine whether their selection devices comply with Title VII: The reason that it is i......
  • Request a trial to view additional results
39 cases
  • Hull v. Cason
    • United States
    • California Court of Appeals
    • January 7, 1981
    ...other arduous duties of his employment. A similarly unpersuasive argument was answered by the court of Smith v. Troyan (6th Cir. 1975) 520 F.2d 492, 496 (cert. den., 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385), in this manner: "That an occupational [114 Cal.App.3d 374] function consumes a ......
  • Leag. of U. Latin Am. Citizens v. City of Santa Ana, No. CV 74-767-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 22, 1976
    ...constitute the kind of adverse impact necessary for a prima facie case. As the Sixth Circuit Court of Appeals stated in Smith v. Troyan, 520 F.2d 492, 497-98 (1975), "Though general ability, or intelligence, tests have often been invalidated for their racially disproportionate impacts . . .......
  • Brown v. New Haven Civil Service Bd., Civ. No. N-78-234.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 27, 1979
    ...Cir. 1978), aff'g 446 F.Supp. 361 (E.D.Va. 1977); Rule v. Ironworkers Local 396, 568 F.2d 558, 565 n. 10 (8th Cir. 1977); Smith v. Troyan, 520 F.2d 492, 497-98 (6th Cir. 1975); Lee v. City of Richmond, 456 F.Supp. 756, 771 (E.D.Va.1978); cf. Kirkland v. New York State Department of Correcti......
  • Blake v. City of Los Angeles, Nos. 77-3595
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 2, 1979
    ...Smith v. City of East Cleveland (N.D.Ohio 1973) 363 F.Supp. 1131, Rev'd in part, aff'd in part sub nom. Smith v. Troyan (6th Cir. 1975) 520 F.2d 492. 6 The EEOC guidelines are designed to help employers determine whether their selection devices comply with Title VII: The reason that it is i......
  • Request a trial to view additional results

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