The Bauer Decision and Job-Relatedness
Those who fail to learn from the mistakes of the FBI are destined to lose in court.
FitForce Blog, July 17, 2014
The (admittedly modified) words of George Santayana seem particularly apropos as we consider further the implications of Bauer v Holder, Department of Justice (Case No. 1:13-cv-93). A central issue in Bauer is the physical fitness test and standards (PFT) required of National Academy Trainees (NAT's) which resulted from two studies conducted by an Industrial/Organizational Psychologist employed by the FBI. In its defense of the test, the FBI offered that the National Academy Training Program (NATP) is designed to ensure a NAT has attained the necessary proficiencies to perform the duties of a special agent and that participation in the physical training program is important to ensure safety and effectiveness in training and on the job (paraphrased). Successful completion of the PFT therefore is considered a "key component" of the Physical Training Program.
Tests and Standards
Accepted professional standards and various legal requirements dictate the methods applied in validation studies. Among them are the means by which the demands of the job are identified and the eventual test and standards are related to the job. Collectively we call this validity evidence. Further, the term "job" in this instance may refer to the "job of a NAT" or a special agent. We can't know which job was examined without reading either of the actual studies. What is highlighted in the court's decision is an explanation of how the PFT standards were derived.
Aerobic and anaerobic power and muscular endurance are underlying constructs of both the job of a special agent and many of the NATP components. The elements of the PFT (1.5 mile run, 300 meter run, push ups and sit ups) measure those underlying constructs. It is reported that Dr. Grubb tested a sample of 324 NATs (260 male and 64 female) and that the standard for each test was set at one standard deviation below the mean performance for each sex.
Quick boredom disclaimer: We're going to talk statistics for a minute.
The mean as we know is the average. It is calculated by adding up all of the values (x), for the purposes of our discussion, we'll use push ups since that's what got Mr. Bauer jammed up, and dividing the number of push ups by the number of people (n) who performed the push ups, in this case 260 males. The standard deviation on the other hand describes the amount of variation that exists among the values of x, the variation in the number of push ups each NAT was able to perform. These two statistical measures describe the muscular endurance, as evidenced by the number of push ups performed, of 324 NATs. The number they arrived at was 30 push ups for males and 14 push ups for females.
Is Anybody Lost Yet?!
Let's review the facts in an attempt to clarify:
FACT:
Employers are bound to demonstrate the relationship between a job and the performance on a test that is required to attain or retain the job.
FACT:
The validity evidence pointed to certain physical abilities as being job-related.
So far, so good.
FACT:
The FBI's response to this requirement and in light of the aforementioned validity evidence was to arbitrarily pick some numbers that simply describe the fitness of a small sample of NATs and pass that off as a job-related standard.
FACT:
The FBI further compounded the problem by superimposing a 10-point award system to the testing process.
FACT:
In their defense, the FBI testified they chose this approach, i.e. gender-adjusted, norm-based standards, because men and women are different!
WHAT HAPPENED TO THE JOB?
Ok. I'll stop yelling, but you get the point. We all know that men and women are different, and most of the time, most of us are glad for it! Even Congress knows men and women are different. This basic understanding no doubt played a role in their decision to forbid different cutoff scores.The job is supposed to the driving concern in employment practices, not a social agenda.
If the job is the same, the standards should be the same. At FitForce, we have consistently identified and quantified the demands of the law enforcement officer position. Further, we have been able to identify a minimum level of performance, in a fitness test and in a job task simulation test, that predicts safe and effective job performance. Occasionally, that minimum may represent a level of fitness that some may need to train to meet, but rest assured, any person who can perform the essential functions of the job with or without a reasonable accommodation, can also attain the corresponding level of fitness. This is a valid, reasonable and lawful expectation that can be accomplished by a candidate or incumbent with some support and effort at the same time it can be maintained and defended by an employing agency.
Stay Safe, Stay Strong
JS