Settlement reached by Colorado Springs for alleged fitness test discrimination

Published: Jul. 12, 2017 at 6:49 PM MDT
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UPDATE 1/19/18:

The City of Colorado Springs has settled a lawsuit tied to discrimination on a fitness test for the police department.

The city announced on Friday it settled in the amount of $2,471,350 that will be paid by Starr Indemnity, the city’s excess liability insurance carrier, and Lloyd’s of London, HPS’s insurance carrier. Plaintiffs’ attorneys will receive $882,054.42 of the total settlement amount and the remaining settlement amount will be divided among the 12 Plaintiffs.

The city provided the following information in a release:

The City maintains that the test was not discriminatory and that it did not engage in any wrongdoing. After careful consideration, the Police Department determined that a minimal level of physical ability should be the same minimum qualification for all police officers, regardless of rank, assignment, age or gender because all police officers are expected to respond to emergency situations. The decision was made to implement a physical abilities test for current police officers. The Police Department believed that all current police officers would pass a physical abilities test with sufficient time to prepare. In July of 2010, the Police Department hired HPS to develop and guide implementation of a physical abilities test that reflected minimum physical performance standards for applicants and current police officers. In developing the test, HPS gathered job analysis data specific to the Police Department, including assessment of the physical ability of a representative sample of the Police Department’s officers. HPS completed the test development in October of 2011. In addition to recommending the appropriate components of the test, HPS provided minimum passing scores for each component. There were four components to the test: (1) the Illinois agility run (a timed test involving running through a course while making quick turns); (2) the beep test (a timed test involving multiple runs on a 20 meter course); (3) push-ups; and (4) sit-ups. The attached document provides details of the scoring established by HPS and an example test result from an unnamed Colorado Springs police officer. In September of 2012, all police officers were notified that the Police Department was implementing a mandatory physical abilities test and were informed of the test components and scoring. In 2013, in order to give police officers ample time to prepare for the test, the Police Department administered a mandatory practice test. There were no job consequences for failure to pass the practice test and only the individual taking the test was provided the results. In 2014, two years after notifying all sworn personnel about the mandatory physical abilities test, the Police Department administered the test. To help police officers prepare for the test, the Police Department provided resources such as access to personal training and wellness coaching. The plan was to administer the test yearly. The overall pass rate for police officers who finished the test during the 2014 testing process was approximately 98%, including six of the 12 Plaintiffs. Unlike the practice test, there were consequences for failure to pass the mandatory test, including light duty status (similar to duty assigned to police officers with injuries) and a six-month performance improvement plan that allowed at least six additional opportunities to pass the test. While police officers who did not pass the test after six months could be subject to discipline up to and including termination, no police officers were ever terminated for failing the physical abilities test. The Police Department started administration of the second test in 2015. However, prior to completing testing, the Plaintiffs filed a lawsuit in the U. S. District Court for the District of Colorado and sought a preliminary injunction to prevent the Police Department from testing pending the outcome of the lawsuit. In November 2015, the City agreed to stop testing pending the outcome of the case. Plaintiffs brought several claims against the City. Rather than hold one trial on all the claims in the lawsuit, U.S. District Court Judge Richard Matsch decided to have one trial on the issue triable to a judge and another trial on the issues triable to a jury. In July of 2017, following a bench trial, Judge Matsch held that the physical abilities test had a disparate impact on women. The City strongly disagrees with Judge Matsch’s opinion and vigorously defended itself in the lawsuit. Unfortunately, the City was not allowed to appeal Judge Matsch’s opinion until the remaining claims were decided by a jury with Judge Matsch presiding. The City stands by its decision to implement the physical abilities test for current police officers and does not believe that the test is discriminatory. The City’s position is supported by the high passage rate of police officers who finished the test during the 2014 testing process (approximately 98%). However, defending the lawsuit is a drain on City resources. After considering numerous factors, including the tremendous amount of sworn and civilian employee time involved in a U.S. District Court jury trial in Denver, the length of appellate processes, and the existence of insurance coverage for monetary amounts paid to the Plaintiffs and their attorneys, it was determined that settlement was in the best interests of the City. As a result of the U.S. District Court’s opinion, the Police Department has been unable to use the physical abilities test developed by HPS for applicants or current police officers. While physical fitness is a matter of personal choice, there are certain professions such as law enforcement that require a minimum level of physical ability. Looking forward, the Police Department will explore alternative physical abilities tests to ensure officers continue to be physically prepared to respond to calls for service. The safety of the community is the Police Department’s number one priority. The Police Department remains dedicated to providing excellent and responsive police services to the citizens of Colorado Springs.

A test given to Colorado Springs police officers "shamed and ostracized" women, according to a U.S. District Judge.

Judge Richard Matsch ruled in favor of 12 plaintiffs on Wednesday for a lawsuit over a fitness test given out to officers in Colorado Springs. The plaintiffs believe the test discriminated against women, violating civil rights laws. The test is known as the Physical Abilities Test, or PAT, by the city. A significant amount of women failed the test in recent years compared to men.

an attorney representing the women praised the ruling.

"The women are wonderful professionals, and all they wanted was to be able to serve crime victims and the citizens of Colorado Springs," Dell'Olio said. "And now they're going to be allowed to do that."

The city released the following statement on the day of the ruling:

In reference to the Physical Abilities Testing (PAT) lawsuit, the City has received the ruling, is reviewing it, and evaluating the City’s options. Due to the fact this is still in litigation, we will be making no further statements on this matter.

A hearing will be scheduled to decide how much money is owed to the women.

the officers said the PAT test is unfair to women officers over 40 years old.

"I think the motivation in part is to get rid of these older women officers," said attorney Ian Kalmanowitz, who is representing the 12 plaintiffs.

The complaint says the PAT test was introduced as a way to encourage a "culture of fitness" on the force and to reduce injuries while on patrol. It says the test was never supposed to be an indication of how well an officer can do their job.

The test is based off of sit ups, push ups, an agility test and 20 meter runs. Officers tell 11 News you only need to fail one of the components to fail the entire test.

"The test doesn't have anything to do with the ability to perform the duties of the job," Kalmanowitz said.

The tests were first given in October, November and December of 2014 and the complaint alleges that as time went on, the department added disciplinary action for those who failed.