I dissent.
As the United States Supreme Court has pointed out, “Nothing in the [Civil Rights] Act precludes the use of testing or measuring procedures; obviously they are useful.” (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 436 [28 L.Ed.2d 158, 167, 91 S.Ct. 849].) On its face, defendants’ six-foot wall test appears to be a reasonable testing procedure useful in *12measuring ability to respond to an emergency situation. And, as the majority conclude, it is difficult to imagine a more accurate way of testing ability to scale a six-foot wall than to scale one.
Nevertheless, while Congress clearly did not intend by title VII of the Civil Rights Act-to bar all employment tests, title VII does forbid the use of employment tests that are discriminatory in effect unless the employer meets “the burden of showing that any given requirement [has] a manifest relationship to the employment in question.” (Griggs v. Duke Power Co., supra, 401 U.S. at p. 432 [28 L.Ed.2d at p. 165].) This burden arises only after the complaining party has made out a prima facie case of discrimination, that is, has shown that the test in question selects applicants for hire in a racial or sexual pattern “significantly different from that of the pool of applicants.” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [45 L.Ed.2d 280, 301, 95 S.Ct. 2362]. See also Gov. Code, § 50084: “Each local agency’s hiring practices .. . shall conform to the Federal Civil Rights Act of 1964,” and § 50085: “No local agency shall, as a part of its hiring practices ..., employ any . .. testing or evaluation methods which are not job-related unless there is no adverse effect.”)
In the present case, the majority admit that the six-foot wall test has such discriminatory impact, and thus correctly conclude that the Oakland Police Department has the burden of proving that the test is demonstrably related to the job. As I shall explain, however, under the relevant title VII precedents and the authoritative federal guidelines,1 the Oakland Police Department has failed to meet its burden in a number of respects.
In the first place, while defendants do not require Oakland police officers to take the physical agility test or to be examined annually for physical fitness, defendants asked 41 police officers to take the present agility test as an experiment. Although several of the officers failed to scale the six-foot wall, defendants did not dismiss them.2 Thus despite *13the fact that the six-foot wall test appears on its face to be job-related, the assumption that the tested skill is a necessary prerequisite to an adequate performance of the job collapses if defendants retain current employees in the work force despite their inability to pass the test. (See Griggs v. Duke Power Co., supra, 401 U.S. at pp. 431-432 [28 L.Ed.2d at pp. 164-165]; United States v. City of Chicago (7th Cir. 1977) 549 F.2d 415, 434; Rogers v. International Paper Co. (8th Cir. 1975) 510 F.2d 1340, 1351, as mod., 526 F.2d 722.)
Moreover, the record in the present case reveals that before instituting the current physical agility test, defendants required that an applicant for the position of policewoman meet certain height and weight standards and perform only a series of simple physical exercises, not including wall-scaling. Defendants required male applicants to meet certain height and weight standards and to perform a physical exercise examination which was relatively demanding, but which did not include wall-scaling. In Hardy v. Stumpf (1974) 37 Cal.App.3d 958 [112 Cal.Rptr. 739], the court invalidated the City of Oakland’s height and weight requirements for police officers. Defendants consequently replaced the invalidated requirements and both physical exercise examinations with the present agility test, without requiring incumbent employees to pass the new test.
Under the Equal Employment Opportunity Commission Guidelines, however, “A test or other employee selection standard—even though validated against job performance in accordance with the guidelines in this part—cannot be imposed upon any individual or class protected by title VII where other employees, applicants or members have not been subjected to that standard.” (29 C.F.R. § 1607.11.) As the court explained in United States v. Jacksonville Terminal Company (5th Cir. 1971) 451 F.2d 418, cert. den. (1972) 406 U.S. 906 [31 L.Ed.2d 815, 92 S.Ct. 1607], there can be “no rational justification” for exempting incumbent employees from the rigors of a new job standard without granting identical immunity to contemporary applicants. (See also James v. Stockham Valves & Fittings Co. (5th Cir. 1977) 559 F.2d 310, 337-338, fn. 43, cert. den. (Jan. 16, 1978) 434 U.S. 1034 [54 L.Ed.2d 781, 98 S.Ct. 767]; Nance v. Union Carbide Corp., Consumer Prods. Div. (4th Cir. 1976) 540 F.2d 718, 727-728, vacated on other grounds (1977) 431 U.S. 952 [53 *14L.Ed.2d 268, 97 S.Ct. 2671].) When a test has a discriminatorily exclusionary effect, as in the instant case, it clearly presents the potential for perpetuation of past discrimination if the requirement is not applied uniformly to both present employees and applicants.
In addition, the same federal Guideline specifies that “Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.” (29 C.F.R. § 1607.11.)
As the majority acknowledge, this language stipulates that a female applicant for the position of Oakland police officer who, because of prior discrimination, was unable to qualify under previous less stringent standards, cannot now be required to take and pass a more stringent test (See Albemarle Paper Co. v. Moody, supra, 422 U.S. 405, 434 [45 L.Ed.2d 280, 306]; Officers for Justice v. Civil Serv. Com'n, San Fran. (N.D. Cal. 1975) 395 F.Supp. 378, 384-385.) “This Guideline does not require that the affected class member show that he would have been able to qualify in the absence of discrimination; it requires only that he show that he lost the opportunity to qualify.” (Original italics.) (Watkins v. Scott Paper Co. (5th Cir. 1976) 530 F.2d 1159, 1178, fn. 27, cert. den., 429 U.S. 861 [50 L.Ed.2d 139, 97 S.Ct. 163].) In the present case, however, defendants did not allow plaintiff to take either the simple exercise examination formerly required of female applicants, or the more strenuous exercise examination required of male applicants. Thus, by substituting the new six-foot wall test, a more restrictive selection procedure than that previously in force for women, and one which current male employees have never been required to pass, defendants have failed to afford “the same opportunities as had existed for other employees or applicants during the period of discrimination.” Under this Guideline alone, then, defendants’ six-foot wall test cannot stand.
Secondly, defendants’ use of the six-foot wall test is additionally invalid since defendants fail to demonstrate that “wall-scaling” does not involve a skill which an employee could easily attain in a brief training period. The federal Guidelines specifically provide that “The types of *15knowledge, skills or behaviors contemplated [as appropriate subjects for testing] do not include those which can be acquired in a brief orientation to the job.” (Italics added.) (29 C.F.R. § 1607.5 (a).) The rationale for this principle is clear: because of cultural and societal patterns, members of different sexes, races or ethnic groups may in many instances initially bring to a job differing skills in a number of areas. The Guidelines simply recognize that if such a skill can be acquired in a brief orientation to the job, the employer may not properly seize upon an applicant’s initial unfamiliarity with the skill as a basis for a final rejection of an application for employment. Thus if an athletic maneuver can easily be learned through an employer’s brief instruction, the employer under the applicable federal Guidelines may not rely on the applicant’s inexperience with the technique as a ground for barring that person from all employment. (Cf. Watkins v. Scott Paper Co., supra, 530 F.2d at pp. 1180-1181.)
In the present case, defendants utterly failed to demonstrate that women could not easily be trained to scale six-foot walls; indeed, the evidence in the record supports just the contrary conclusion. Defendants’ test administrator admitted that he had “demonstrated to a couple of women techniques which appeared to be beneficial to some women in getting over the wall.... It was like, if a woman took a test and failed it and she said, ‘Gee whiz, what do you think I can do?’ and I said, ‘A lot of people seem to have success doing it this kind of way....’ ” Thus the majority’s conclusion is wrong: it is quite likely that defendants, with little effort, can teach female recruits how to scale six-foot walls once in uniform.
Thirdly, in addition to the fact that present police officers have not jeopardized their jobs by failing the six-foot wall test, and that defendants have not shown that wall-scaling is riot an easily acquired skill, defendants’ attempt to prove the validity of the wall test is materially defective as measured against the federal standards. The Guidelines emphasize that “Evidence of a test’s validity should consist of empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” (Italics added.) (29 C.F.R. § 1607.4(c).) As the court held in Officers for Justice v. Civil S. Com'n, C. & C. San Francisco (N.D. Cal. 1973) 371 F.Supp. 1328, 1339, “ ‘mere surmises by the defendants .. . cannot justify the use of employment qualifications which will have a discriminatory impact on minority groups.’ [Citation.] Rather, defendants ‘must come forward with *16convincing facts establishing a fit between the qualification and the job.’ [Citation.]”
Although the fact that the applicable zoning ordinance permits fences to a height of six feet may justify the use of a six-foot wall in the test,3 defendants presented absolutely no evidence to establish that the smooth plywood wall utilized in the test was at all representative of walls and fences in the City of Oakland. When plaintiff asked defendants’ test administrator “whether or not there is a substantial number of walls in the City of Oakland [made of smooth plywood],” the administrator replied, “I don’t know. I doubt that many—never mind, strike that.” Yet it is obvious that the test wall’s composition considerably affects the difficulty of the scaling test. As a consequence, defendants’ failure to justify the use of smooth plywood is significant.
Finally, the federal Guidelines expect “that each operational cutoff score [in an employment test] will be reasonable and consistent with normal expectations of proficiency within the work force ... .” (29 C.F.R. § 1607.6.)(See Officers for Justice v. Civil S. Com'n, C. & C. San Francisco, supra, 371 F.Supp. 1328, 1338.) In defendants’ six-foot wall test, applicants were required to scale the wall in at most two attempts as part of the two and one-half-minute physical agility test. Yet defendants offered no evidence that officers required to scale fences and walls in the course of performing their duties are forced to do so in a matter of seconds, without assistance, and in at most two attempts. As defendants’ test administrator explained, “They get two times to try to get over the wall. If they don’t get over the first time, they can back up a few steps and try to climb it again ..., the theory being officers don’t always get over the fences on the first try . .., so we thought two times was reasonable.” Under the applicable federal standards, such a subjective explanation fails to demonstrate that defendants’ test accurately reflects the “normal expectations of proficiency” of the Oakland police.
While the ability to scale a six-foot wall may appear to be related to the effective performance of an Oakland police officer’s duties, this *17simple conclusion does not, as the majority have suggested, end all inquiry under the federal Civil Rights Act. Because of the test’s conceded discriminatory effect, defendants bear the burden of proving the test’s validity in conformity with federal standards.
The defendants have failed to sustain that burden. As we have seen, although the employer utilized the test to screen out a disproportionate number of women, it never required all of its current employees to take the test, and it retained several present male employees despite the fact that they, like the present plaintiff, failed to scale the wall in two tries. Moreover, the record suggests that wall-scaling is a skill which may easily be acquired in a brief orientation and therefore is an inappropriate subject for a test which has adverse employment effect. Finally, the City of Oakland provided no statistically reliable data to support its use of a smooth six-foot plywood test wall. Under these circumstances, I believe that the majority clearly err in holding that defendants have adequately validated their test.
Accordingly, I would reverse the judgment of the trial court.
Appellant’s petition for a rehearing was denied June 1, 1978. Bird, C. J., Tobriner, J., and Newman, J., were of the opinion that the petition should be granted.
The Equal Employment Opportunity Commission has issued “Guidelines” for employers seeking to determine, through professional validation .studies, whether their employment tests are job related. (29 C.F.R. § 1607.1 et seq.) The United States Supreme Court has held that the Guidelines “[express] the will of Congress” (Griggs, supra, 401 U.S. at p. 434 [28 L.Ed.2d at p. 166]), and has specifically approved the Guidelines’ method for demonstrating job relatedness. (See Albemarle Paper Co. v. Moody, supra, 422 U.S. at pp. 430-431 [45 L.Ed.2d at pp. 303-304].)
As defendants’ test administrator testified, “two of the guys that failed the test had bad backs and had no business taking it, but they were just taking it to try and participate in the program. One guy had been shot a couple of times.”
Although a test wall of six feet may indeed reflect the average height of fences and walls in Oakland, defendants did not demonstrate this supposition in a statistically reliable way. As defendants’ test administrator explained, “The officer should be able to scale at least what the maximum height barrier [is] in the city. ... I would say probably the average [height of fences in Oakland], I don’t know, [is] three and a half to six, seven feet. I can’t give an average. ... I haven’t been around and measured every fence in the City of Oakland. ... I looked at numerous fences. I drove through a variety of neighborhoods and I just looked at them.”