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Legislative / Government Affairs Updates

Legislative Update 

 

Physical Ability Tests: How Employers Can Minimize Their Risks

Submitted By: Bill Grob, HR Tampa Legislative Director

Authors: Mallory Stumpf and Sarah Smith Kuehnel, Ogletree Deakins

The Equal Employment Opportunity Commission’s (EEOC) focus on challenging pre-employment testing highlights the importance of carefully validating such tests before implementing them and reexamining existing pre-employment tests to ensure they will withstand legal scrutiny. Failure to do so can result in costly investigations, charges, and lawsuits from the EEOC.

Last April, the EEOC filed a lawsuit against a trucking company alleging the employer violated the Americans with Disabilities Act by using a pre-employment “back assessment” testing applicants’ ability to balance and stand on one leg and touch their toes while standing on one leg in EEOC v. Hirschbach Motor Lines, Inc., No. 2:18-cv-00175 (U.S. District Court for the District of Maine). Likewise, the EEOC has settled two lawsuits against employers for their use of pre-employment tests this year.

This month, a freight company agreed to pay $3.2 million to a class of female applicants after the EEOC filed a lawsuit alleging their strength and fitness tests disparately impacted women. In addition, after years of battling over the disclosure of pre-employment test information, a federal district court recently ruled, in response to a subpoena, that an employer had to provide the EEOC with physical ability test scores and information regarding adverse employment actions occurring after the tests, as well as demographic information about every test taker, resulting in great costs to the employer.

The EEOC’s pursuit of these cases highlights why it is important that employers understand the legal issues surrounding physical ability tests (PATs) and exercise diligence in selecting and validating use of such tests.  If a PAT has a disparate impact – for example if women fail the PAT at a statistically significantly higher rate than men – an employer has the burden of demonstrating that use of the PAT is job related and consistent with business necessity. 

Establishing business necessity is a high standard that requires proof that the test has been validated specifically for the employer and is predictive of an individual’s ability to perform essential physical job tasks. For example, in EEOC v. The Dial Corporation, a leading case on PATs, the Eighth Circuit Court of Appeals rejected the employer’s business necessity defense where there was a disparate impact on female workers. There, the employer argued that the PAT was necessary to reduce injuries. The court disagreed, finding that women had successfully performed the job before implementation of the PAT and were no more likely than men to be injured. Additionally, although the PAT resembled the job in some respects, the court found the test was more difficult than the work employees actually performed.

Accordingly, employers may want to ensure any PAT is properly validated and is truly testing physical abilities that workers need on the job. The process often begins with a professional job analysis to document the physical tasks necessary for the job. This may include consultation with incumbent employee subject matter experts and measurements of frequency, weight, duration, tools, and distances involved in performing physical job tasks.  PATs can then be designed to either simulate actual job tasks or test the minimum level of fitness/strength required to safely and effectively perform the job. Either approach likely requires an expert validation to show that the PAT is predictive of the ability to perform the essential physical tasks of the job.

Employers may also want to stay vigilant in continuing to reevaluate their tests over time. Because job requirements and qualifications can change, employers may want to periodically revalidate PATs to ensure the tests are measuring only necessary job skills and that any potentially less adverse options have been considered. Even if an employer can prove business necessity, use of a PAT may still be prohibited by Title VII of the Civil Rights Act of 1964 if an alternative practice could achieve the employer’s objectives with less adverse impact.

Ultimately, PATs can be a useful tool when hiring employees for physically demanding jobs and can improve worker safety. Still, such tests are susceptible to claims of disparate impact discrimination, so employers that want to limit exposure may want to evaluate whether their tests are validated appropriately.

 

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