621.six Physical Power and Element or Speed

(f) Court Instances

The court in Cox (cited below), when faced with the argument that statistically more women than men exceed permissible height/weight in proportion to body size standards, concluded that, even if this were true, there was no sex discrimination because weight in the sense of being over or under weight is neither an immutable characteristic nor a constitutionally protected category. Cox v. Delta Air Traces, 14 EPD ¶ 7600 (S.D. Fla. 1976), aff’d, 14 EPD ¶ 7601 (5th Cir. 1976). (See also EEOC v. Delta Heavens Contours, Inc., ___ F. Supp. ___, 24 EPD ¶ 31,455 (S.D. Tex. 1980), dec. with the rem’d away from, ___ F.2d ___, 24 EPD ¶ 31,211 (5th Cir. 1980).)

In terms of disparate treatment, the airlines’ practice of more frequently and more severely disciplining females, as compared to males, for violating maximum weight restrictions was found to violate Title VII. Air-line Pilots Ass’n. Internationally v. United Heavens Outlines, Inc., 408 F. Supp. 1107, 21 EPD ¶ 30,419 (E.D. N.Y. 1979).

Gerdom v. Continental Air Outlines Inc., 692 F.2d 602, 30 EPD ¶ 33,156 (9th Cir. 1982), vacating to some extent committee advice in, 648 F.2d 1223, 26 EPD ¶ 31,921 (9th Cir. 1981).

Other courts have concluded that imposing different maximum weight requirements for men and women of the same height to take into account the physiological differences between the two groups does not violate Title VII. Jarrell v. East Sky Traces Inc., 430 F. Supp. 884, 17 EPD ¶ 8462 (E.D. Va. 1977), aff’d for each curiam, 577 F.2d 869, 17 EPD ¶ 8373 (4th Cir. 1978). (more…)