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Prison Guard Fitness Test Runs Into Trouble

Connecticut Law Tribune - Christian Nolan

Just how far and fast should a Connecticut correction officer be able to run?

The state Department of Correction once set the standard at 1.5 miles in just under 15 minutes. That’s hardly an Olympian pace. Even a decent high school distance runner can go nearly twice as fast.

Still, people applying to work in prisons failed the test in rather significant numbers. Especially women. Predictably, one of them sued, calling the test discriminatory.

The state’s efforts to get the lawsuit dismissed took an early hit this month after U.S. District Judge Janet C. Hall in Bridgeport granted the case class action status.

"I think it’s an important case, particularly with the financially challenging times that exist," said Outten & Golden attorney Seth Marnin. "These are good jobs for women, well paying with the opportunity for substantial overtime and women were systematically excluded from these opportunities."

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The lawsuit is hardly the first of its kind. For example, in 1999, a class action was filed against the Southeastern Pennsylvania Transportation Authority, which used a physical fitness test to screen those applying to be transit police officers. The plaintiffs claimed the test had a gender bias because very few women ended up being hired.

In the end, the plaintiffs won more than $6 million in damages.

Push-Ups, Too

In the Connecticut case, the lead plaintiff is Cherie Easterling, a Bloomfield woman who in 2004 applied for a correction officer (CO) job. At that point, the entry level salary was $35,000.

Easterling passed the written portion of the exam. She exceeded the standard of 23 push-ups in one minute and 32 sit-ups in the same time period. She was flexible enough to do well in the sit-and-reach test.

But she was tripped up by the distance run. Job candidates between the ages of 21 and 29 had to cover the 1.5 miles in less than 14 minutes and 50 seconds.

According to her lawsuit, the 1.5-mile run was part of the test only in October 2004, June 2006 and October 2006. Easterling claims that in 2004, 62 percent of female applicants passed the run, compared to 82 percent of the males. (The state disputes those numbers, claiming 87 percent of males and 71 percent of females met the running standards).

In October 2006, only 46 percent of the women passed the running test, compared with 77 percent of the men, according to the lawsuit. A statistical expert witness for Easterling, Dr. Alex Vekker, looked at the numbers and concluded there was a "big statistically significant gender disparity in test outcomes."

Getting Shorter

In 2007, the state changed the test. Now applicants must run only 300 meters, or about one-eighth the former distance.

The official explanation from the state was that the switch to a shorter distance was a safety measure that had nothing to do with the lawsuit. But another state official, in a deposition, has since contradicted that claim.

Pamela Libby, of the state Department of Administrative Services, which developed the tests for the correction officers, was asked about the new test. She replied: "In response to this lawsuit, we were looking for an alternative and we are piloting the 300-meter run currently."

Attorney Marnin believes Connecticut’s switch is evidence that officials knew the 1.5-mile test was problematic and they sought out a "less discriminatory alternative."

Marnin acknowledged that in a common civil lawsuit, in which someone trips and falls on the sidewalk and sues the shopkeeper, the fact that the shopkeeper fixed the sidewalk afterward isn’t normally admissible as evidence. But in a lawsuit filed under Title VII of the Civil Rights Act involving possible gender discrimination, evidence of the change to a 300-meter run will be allowed, he said.

"I do like my chances going forward," said Marnin, who is working with a team of lawyers on the case and says any woman who failed the 1.5-mile run in 2004 or 2006 are eligible to join the lawsuit.

Among other things, the plaintiffs point out that it’s highly unlikely that an on-the-job correction officer would ever have to run 1.5 miles in pursuit of an inmate, or for any other reason. Also, "they don’t presently test incumbent officers," said Marnin. "Once you pass this [fitness] test to become an officer, you’re never tested again. To argue that you must possess this level of fitness in order to do the job just doesn’t bear out."

Judge Hall said pretty much the same thing in her decision to grant class action status. "There appears to be no dispute that the physical fitness test has not been shown to be predictive of who can and cannot perform the essential or critical physical functions of the job of CO," she wrote.