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Scopelitis L & E News: November 2019

by A. Jack Finklea, James H. Hanson, Sara L. Pettinger, David D. Robinson, Donald J. Vogel

November 7, 2019

Is Your Company’s Fitness/Agility Test Legal?


When hiring an employee for a physically demanding job, a fitness/agility test may be necessary to ensure that a candidate can safely perform the job. However, recruitment and hiring practices have been on the radar of the Equal Employment Opportunity Commission (EEOC) and have resulted in challenges to company policies that require such tests. If not properly tailored, a well-intentioned fitness test may result in claims of disability discrimination under the ADA Amendments Act (ADAAA) or claims of discrimination under Title VII of the Civil Rights Act of 1964. 

Fitness Tests and Potential Disability Claims
The ADA prohibits medical inquires at the pre-employment stage. Thus, a test that requires the use of medical equipment or interpretation by a healthcare professional may be challenged by the EEOC. A test that seeks information about an individual’s physical or mental impairment is also impermissible. Examples of impermissible tests include:

  • Blood pressure screening 
  • Cholesterol tests
  • Range of motion tests that measure muscle strength and motor skills

At the pre-employment stage, employers may conduct an agility test, which examines an applicant’s ability to perform actual or simulated job tasks and measures fitness by looking at physical tasks such as running or lifting. 
 
Although an employer may make limited medical inquiries during a post-offer fitness test, a post-offer test must be job-related and consistent with business necessity. The EEOC recently challenged a trucking company’s fitness test, finding the policy was not job-related or consistent with business necessity. According to the EEOC lawsuit, the trucking company used a back assessment for its over-the-road drivers, which tested, among other things, an applicant’s ability to balance and stand on one leg, touch toes while standing on one leg, and crawl. The EEOC claimed this test: 

  • Screened out job candidates with pre-existing injuries
  • Was an assessment unrelated to the job of driving a truck
  • Resulted in the exclusion of applicants regarded as disabled for truck-driving positions 

 
Fitness Tests and Potential Sex Discrimination Claims
Once again targeting the trucking industry, the EEOC also recently brought a class action lawsuit against another trucking company in which it claimed the company engaged in sex discrimination when a class of female employees was denied employment after failing to obtain a minimum score on a fitness test. As alleged by the EEOC, after candidates received a conditional offer of employment as company drivers, the company administered a “CRT” test, a test using an isokinetic apparatus used to measure an individual’s knee, shoulder, and trunk strength as well as to test range of motion and endurance. In the complaint, the EEOC alleged the company revoked the conditional job offer for any individual who failed to achieve a passing score on the CRT test. The EEOC claims the test violated the sex discrimination laws in Title VII because the test disproportionately excluded females from driving positions. According to the EEOC’s District Director Julianne Bowman, employers “cannot use a test that disproportionately excludes women unless they have proof that the test is actually related to one’s ability to do the job.” Bowman said the EEOC is spotlighting its commitment to expand “women’s access to traditionally male-dominated careers through the removal of unnecessary and discriminatory barriers to employment.”

How Do Employers Evaluate Whether a Candidate is Physically Qualified for a Job Without Triggering a Lawsuit? 

  1. Employers that use fitness tests need to take a close look at their policies. Outdated policies might include fitness tests that no longer match the job qualifications of a particular position. 
  2. Employers should evaluate their fitness tests periodically to ensure that the test remains necessary for the position. 
  3. Those who administer the policies also need to be properly trained to understand the issues that may result in litigation. 
  4. Employers who use fitness tests must also be sure that every candidate for a given job category is taking the same fitness test. 
  5. Fitness tests should also be as narrow as possible to ensure that the test is truly consistent with business necessity. 
  6. Employers need to examine the outcome of any fitness test to determine whether a class of individuals is being excluded from a position. If that is the case, employers need to develop an alternative test. 

 
Scopelitis can help evaluate your fitness test and/or hiring policies. Contact the Scopelitis Labor & Employment Team.

 


News from Scopelitis is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2019. All rights reserved. 

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