The EEOC’s Strategic Enforcement Plan (SEP) focuses, in part, on eliminating class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

Since issuing the SEP, the agency has filed lawsuits against employers to ensure that there is a level playing field for women and individuals with disabilities, among other classes.  Recent cases demonstrate this with regard to pre-employment Physical Ability Tests (PATs) for job applicants.  The EEOC is pursuing employers where the PAT being used may be disparately impacting women – and, the EEOC is winning.  In the most recent case, $3.2 million was awarded to a class of female applicants, who were disproportionately turned away from a job because of the results of the PAT.

Given this impact, and especially in light of the size of the recent judgment, it is crucial for employers to understand the issues surrounding PATs.  The EEOC is searching for any disparate impact a PAT could have.  If one is found, the employer has the burden of showing (1) the use of the PAT is job-related and (2) the PAT is consistent with business necessity.  In order to show business necessity, the PAT must be predictive of the individual’s ability to perform essential job tasks.  The employer must also show that no alternative practice could achieve his or her objectives with less adverse impact.

The EEOC lists Best Practices for Employment Testing.  Those include:

  • Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
  • Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
  • If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
  • To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
  • Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

The following are some recommendations specifically for employers conducting PATs:

  • Ensure the PAT is properly validated (actually testing physical abilities that workers need on the job)
    • Use a professional job analyst/consultant (appropriate employee safety experts)
      • Include measurements of frequency, weight, durations, tools, and distances involved in performing physical tasks
    • Have the analyst document the verifiable physical tasks necessary for the specific job (not a class of jobs)
  • Design/Redesign a PAT to simulate job tasks or test minimum level of fitness required to safely and effectively perform the job.
  • Revalidate PATs to make sure tests are still measuring only necessary job tasks.

While PATs are useful tools to improve worker safety, they can result in disparate treatment leading to claims of discrimination.  Employers should pay close attention to their practices, consider the above recommendations, and be aware of the EEOC’s continued pursuit of employers who are not doing enough to ensure that women and people with disabilities have a fair chance to obtain a position that may involve a pre-employment physical ability test.

 

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