Requiring pre-employment physical tests of job applicants could means employers are violating the law if the test adversely impacts females.
The Equal Employment Opportunity Commission recently found a trucking company in violation of the Americans with Disabilities Act after it required applicants undergo a pre-employment “back assessment.”
The disputed test required all applicants to be able to balance themselves while standing on one leg, and by touching their toes.
This wasn’t an isolated action, either. Earlier this year, EEOC also has settled two similar lawsuits against employers for their use of pre-employment physical tests, according to Mallory Stumpf and Sarah Smith Kuehnel, attorneys for the law firm of Ogletree Deakins.
In June, a freight company agreed to pay $3.2 million to a class of female applicants after the EEOC sued the firm, charging that the strength and fitness tests disparately impacted the women.
Another case earlier in 2018 involved physical ability testing for female police recruits and resulted in a nearly $2.5 million settlement.
EEOC’s pursuit of these cases highlights the importance of employers understanding the legal issues surrounding physical ability tests (PATs) and exercising diligence in selecting and validating use of such tests, the attorneys warn.
If a PAT has a disparate impact – such as women failing it at a statistically significantly higher rate than men – the employer has the legal burden of demonstrating that use of the PAT is job related and consistent with business necessity.
“Ultimately, PATs can be a useful tool when hiring employees for physically demanding jobs and can improve worker safety,” the attorneys admit. “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.”
