HOW WOULD YOU ARGUE THAT WOMEN’S WORKOUT WORLD, A HEALTH AND EXERCISE CLUB, SHOULD BE ABLE TO LAWFULLY DECLINE TO ACCEPT MEN AS CUSTOMERS AND/OR EMPLOYEES?

HOW WOULD YOU ARGUE THAT WOMEN’S WORKOUT WORLD, A HEALTH AND EXERCISE CLUB, SHOULD BE ABLE TO LAWFULLY DECLINE TO ACCEPT MEN AS CUSTOMERS AND/OR EMPLOYEES?

Circuit Judge Calabresi The district court found that Farmingville’s physical agility test (“PAT”), which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women. * * * * * BACKGROUND Farmingville is the governing body of a volunteer fire department that has approximately 100 members. Pietras was a probationary (i.e., trainee) firefighter in the Farmingville Department. Even as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits. Before Pietras could become a full member of the department, however, she and all other probationary volunteers were required to pass a newly instituted PAT. * The PAT consisted of a series of physical tasks that the applicants had to complete within a specified time limit. The most difficult of these nine labors was the “charged hose drag,” which involved dragging a water-filled hose—weighing approximately 280 pounds—over a distance of 150 feet. To determine the appropriate time limit for the PAT, Farm ingville officials asked various members of the department to take the test. Forty-four firefighters participated in these trials. Of the 44 test-takers, 33 were males who served as full firefighters, 6 were male probationary members, 3 were male junior members, one was Jeanine Serpe, a female full firefighter, and one was Pietras. The average times of these subgroups were: From these results, Farmingville set four minutes as the time within which the labors had to be completed. The four-minute threshold was determined by taking the average of all the (mostly male) test runs (approximately 3:30) and then adding an extra half-minute “to have some leeway.” There was some concern expressed at a 1993 Farmingville Board meeting that neither Serpe nor Pietras had been able to finish the PAT in anything close to four minutes, but Farmingville nevertheless instituted the four-minute cutoff. Following the implementation of the PAT, Pietras tried and failed the test twice. During this same period, six other female probationary firefighters took the test.

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