concurring in part and dissenting in part.
I concur in parts I, IIA, and III of the majority’s opinion. I respectfully dissent, however, from the majority’s conclusion in parts IIB and IIC that the city was entitled to summary judgment on Smith’s age discrimination claim. I certainly agree that a high level of physical fitness is related to the job of a firefighter and that the city must develop a policy that ensures safe and efficient job performance. In my view, however, the city has not adequately demonstrated that its fitness standard has a manifest relationship to the duties of a fire captain. Nor has the city produced sufficient evidence to support a finding that its policy of dismissing all employees who fail to meet the standard is necessary for their safe and efficient job *1475performance. Moreover, contrary to the majority’s position, the opinions of four physicians who independently examined Smith and determined that he was fit to perform his firefighting duties, directly rebut the necessity of the city’s policy. At a minimum, therefore, I do not agree that summary judgment was appropriate for Smith’s age discrimination claim and would remand to the district court for a full trial on the merits.
To prevail in its business necessity defense, the city must validate its fitness test for job-relatedness to the particular skills and exertional requirements of a fire captain, the position at issue in this case. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280, 304 (1975). As the ANSI report recommends, for a proper fitness evaluation, an examiner must consider meaningful work-related information, including the type of activity to be performed, the level and duration of effort required. (J.A. at 336.)
To justify its fitness standard, the city relies solely on Dr. Zorn’s conclusion based on his review of a report of a study in which he did not participate. The study tested the ability of a sample group of firefighters to complete a series of tasks that were “designed to simulate the duration, intensity, and types of tasks that áre performed during firefighting.” (J.A. at 215.) As the majority states, a fire captain is frequently involved in fire suppression activities when a, company arrives at a fire scene. Yet, as both Chief Phillips and Chief Morgan testified, a fire captain spends much less time in the structure fighting the fire than firefighters and the captain’s main role is directing, not participating in,.the fire suppression. (J.A. at 151, 170.) Dr. Zorn acknowledged that it would be “reasonable” to adjust the fitness requirements for different positions, depending on the amount of time each position spends suppressing the fire. He left those decisions to the fire department. (J.A. at 130.) The city has made no attempt to link its fitness standard specifically to the job requirements of a fire captain. Thus, the standard cannot be justified as a business necessity.
Even if a fitness standard for firefighters could justify the dismissal of a fire captain, there is conflicting evidence in the record as to whether the test used and the specific fitness level set by the city are reasonable. After reviewing the study and discussing its findings with Dr. Zorn, Dr. Schwartz wrote to the fire department: “Dr. Moseley and I do not believe that this study justifies identifying Mr. Smith as unable to fulfill the duties of a firefighter.” (J.A. at 361.) Dr. Schwartz testified that the V02 mínimums set by the city are unreasonable and that, in his opinion, the city should not rely on a single test for its fitness evaluation. (J.A. at 179-80.) With this conflicting evidence as to the validation of the standard, Smith’s claim-should have survived summary judgment.
In addition to the insufficient evidence of a “manifest relationship” between the fitness standard and Smith’s job requirements, the city has not demonstrated the necessity of its policy requiring dismissal of all those who fail the fitness test. The city argues that its policy is necessary because federal regulations and ANSI recommendations require fire departments to ensure the safety of its employees. Neither authority requires as strict a policy as the city has adopted for its firefighters, however. Moreover, the study on which the city relies for its standard does not recommend that employees failing to meet the standards be fired. Rather, the study suggests that employees who cannot meet the standards be given a specialized exercise regime to improve their levels of cardiopulmonary fitness. As the authors of the study recognize, .
policies that select and/or retain on the basis of fitness but are not accompanied, by programs emphasizing fitness may be vulnerable to legal challenge. Initiating entry expectations at a level allowing for a reasonable decline with advancing age is one step but this should be accompanied by weight control, exercise, and smoking cessation programs with periodic individualized assessment.
(J.A. at 221.) In a letter to Dr. Zorn, Soth-mann recommends:
a proactive approach where individuals below the expectation are given time to *1476improve through an established policy negotiated by concerned parties (e.g. administration, union, medical, human rights). An unwillingness to adhere or failure to achieve the expectation should be treated on a case by case basis with additional information to decide employment implications.
(J.A. at 256.) The city did not implement these recommendations. Where a fitness test so disparately affects persons protected by the ADEA, the city should at least attempt to minimize the effect by giving its employees an opportunity to improve their physical condition.
To further rebut the necessity of the city’s fitness standard, Smith has presented substantial evidence that, despite failing the city’s test, he was fit to perform firefighting duties. Dr. Glazier, who examined Smith to provide a second opinion, stated that based on spirometric findings, “[Smith] is capable of performing exertional tasks while wearing SOBA.” (J.A. at 364.) The three doctors who evaluated Smith for his disability pension status thoroughly examined him. Each concluded separately not only that Smith was not disabled but also that he was fit to return to work as a firefighter. As the EEOC asserted in its amicus brief, the opinions of the four doctors that Smith’s cardiopulmonary capacity would not prevent him from pérforming the duties of his job safely and efficiently is sufficient to create a triable issue of fact as to whether the city’s standard is justified by business necessity.
The majority characterizes the dispute in this case as how fitness can be “most appropriately measured.” Rather, the real dispute is whether the city’s policy, which has a disparate impact on persons protected by the ADEA, has a manifest relationship to the job of a fire captain and whether it is necessary for the safe and efficient performance of the captain’s job. In my view, plaintiff presents sufficient evidence to counter both elements of the business necessity defense. Thus, Smith’s age discrimination claim should have survived summary judgment.