Pre-Employment Physical Ability Tests Can be a Legal Liability If Not Done Right

by Jim Poole, President of Lifetime Learning, LLC

David Sparkman of EHS Today wrote in a July 20, 2018 article entitled “EEOC Cracks Down on Pre-Employment Physical Testing” that “If your company uses pre-employment physical stress tests for job applicants that result in the rejection of female applicants, you could be in a world of hurt if the Equal Employment Opportunity Commission (EEOC) finds out.” He described the story of Hirschbach Motor Lines, “which used a pre-employment back assessment to screen and reject applicants it believed would be unable to work as truck drivers. Applicants were tested for their ability to balance and stand on one leg, touch their toes while standing on one leg, and to crawl… The company eventually agreed to pay $3.2 million to a class of female applicants after the EEOC filed a lawsuit alleging the strength and fitness tests they took impacted women disparately. Earlier this year another case involving physical ability testing required by a police department resulted in a nearly $2.5 million settlement for female applicants.”

EEOC’s aggressive pursuit of cases demonstrates why it is important that employers understand the legal issues surrounding physical ability tests (PATs). Extreme care should be exercised when selecting and validating such tests. Sparkman quotes experienced lawyers representing clients in these types of cases, “’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,’ explain attorneys Mallory Stumpf and Sarah Smith Kuehnel of the Ogletree Deakins law firm.”

The EEOC announced last year in its Strategic Enforcement Plan (SEP) that for the next several years, it will continue to focus on class-based recruitment and hiring practices that discriminate

PATs can be useful in pre-employment assessments, but employers need to make sure they are constructed and utilized correctly. A credible approach is:

1. Have an independent expert perform a thorough job/task analysis – a thorough job and task analysis will identify the critical tasks of the targeted job classification, the “best practice procedure” for each task, and a breakdown of the core skills and abilities needed to perform each task and at which procedural elements of the task it is required. This represents the highest form of content validation, upon which other validity studies can be built to further document “job-relatedness.” You might ask  them to concurrently perform at safety analysis to collect that data and save money.
2. From the sum of all of the core skills and abilities, select the ones that are “bono fide occupational qualifications(BFOQ)” – some skills and abilities may be required of tasks of the job classification, but the prevalence and importance to the job classification might be questionable. These are the items that cause the most controversy if used in employment testing, often seen as the key disqualifier.
3. Design or select the test that best assesses for the BFOQs – Designing a test that will withstand scrutiny should be done by an independent expert to mitigate any perceived or real employer bias. If selecting a “canned” test, still have an expert “validate” the test to the employer’s BFOQs. NOTE: a nationally recognized test does not mean it is a valid test for a specific employer’s BFOQs.The employer has the burden of proving that it is so.
4. Implement test, monitoring for any “disparate treatment” or “adverse impact”  – other validity studies should be employed especially if employer decides to test for the more controversial skills and abilities. Additionally in these cases, a lawyer specializing in employment law should be consulted. Among other things, it is crucial to have validity evidence  justifying the job-relatedness of physical ability measures.

“’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,” Stumpf and Kuehnel point out. “Because job requirements and qualifications can change, they also advise employers to periodically revalidate PATs to make sure that their tests are still measuring only necessary job skills and that any potentially less-adverse options have been considered.’” Wrote Sparkman, “Even if an employer can prove business necessity, use of a PAT may still be prohibited if an alternative practice could achieve the employer’s objectives with less adverse impact, Stumpf and Kuehnel stress.”

In previous articles, such as “The Right Assessment is a Good Predictor if Candidate is Able to Learn and Master The Job Classification – Job Relevance is Critical to Legal Compliance and Success-Part 1” and “Part 2” I covered the topic of assessments in detail. My firm has partnered with Proactive Technologies, Inc. on many projects where Proactive Technologies performs a detailed job/task analysis from which to develop a structured on-the-job training program for the employer. Concurrently, my firm utilizes the job/task analysis data to design assessment tests and/or select and validate products available from reputable sources. While my firm helps the employer identify and select the right candidate for the job classification, Proactive Technologies ensures each hew-hire and incumbent are driven to full, documented job mastery.

To learn more about Lifetime Learning, LLC and our range of products and services, visit the Lifetime Learning website. Likewise, I encourage any employer, workforce development department director or training professional to learn more about Proactive Technologies, Inc.,  their products and services that are all based on a sound job/task analysis for content validity and their clients and partnerships with institutions. Contact a Proactive Technologies representative to learn more about their approach and to schedule an online briefing and/or onsite presentation.