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(ii) Four-Fifths Laws – It may not be appropriate in many instances to use the 4/5ths or 80% rule, which is a general rule of thumb or guide for determining whether there is evidence of adverse impact in the selection process, when analyzing height/weight requirements. Under that rule, which was adopted in the Uniform Guidelines on Employee Selection Procedures (UGESP) at 29 C. § 1607, there is a substantial difference and therefore evidence of adverse impact if the selection rate for the excluded group is less than 80% of the rate for the group with the highest selection rate. Because of potential discouragement when height/weight requirements are imposed by employers, the actual applicant pool may not accurately reflect the qualified applicant pool. (See § 621.1(b)(2)(i), above.) Therefore, a national statistical pool, as opposed to an actual applicant pool, should be used for comparison purposes. Even though national statistics are used, § 4(D) of the UGESP recognizes that there can still be evidence of adverse impact, often with very large numbers since a national pool is used, based on smaller percentage differences in the selection or disqualification rate if the differences meet the test of being statistically or practically significant. Additionally, where the numbers are very small, even though national statistics are used, the test of statistical or practical significance should be used. For a determination of whether the 4/5ths or 80% rule test, as opposed to the test of statistical or practical significance, can be used when dealing with height/weight requirements and a national statistical pool, the EOS should consult § 610, Adverse Impact in the Selection Process.
(iii) Conclusion – Under the bottom line concept which can be found in § 4(C) of the UGESP, where height and weight requirements are a component of the selection procedure, even if considering all the components together there is no evidence of adverse impact, the height and weight components must nonetheless be separately evaluated for evidence of adverse impact. This is because many court and administrative determinations have found that height and weight requirements are not job related. The position taken by the Commission requiring that height and weight requirements be evaluated for adverse impact regardless of whether the bottom line is nondiscriminatory was confirmed by the Supreme Court in Connecticut v. Teal, 457 U.S. 440, 29 EPD ¶ 32,820 (1982). For a thorough discussion of these and similar problems, the EOS should consult § 610, Adverse Impact in the Selection Process; and the Uniform Guidelines on Employee Selection Procedures at 29 C. § 1607.
(iv) Dothard v. Rawlinson – In Dothard v. Rawlinson, 433 U.S. 321, 14 EPD ¶ 7632 (1977), the Supreme Court was faced with a challenge by a rejected female applicant for a Correctional Counselor position at a prison, who failed to meet the minimum 120 lb. weight requirement. There was also a 5’2″ minimum height requirement which was challenged. National statistics showed that the combined height and weight requirements excluded % of the female population, as compared to less than 1% of the male population.