You Make The Call: Did use of physical abilities test amount to gender bias?

“We used that physical abilities test for job applicants because we thought it would reduce our workers’ comp costs,” said Supervisor Margie Brunton, “not because we were trying to discriminate against women.”

“Well, the Equal Employment Opportunity Commission [EEOC] thinks we implemented the test because we wanted to prevent women from taking jobs with us,” said HR Manager Alan Frankel. “They’re suing us for gender discrimination.”

“That doesn’t make sense,” said Margie.

“According to the EEOC,” said Alan, “94% of the men who took our test passed, but only 52% of the women who took our test passed. The agency claims that at least 100 women were denied jobs because we used the test.”

“It’s fair to say that more women than men failed the test,” said Margie, “but we had a legitimate business reason for using it. We wanted to reduce the likelihood of injuries and to lower our comp costs.”

“The EEOC claims that, based on our own data, we didn’t see a reduction in injury rates or workers’ comp costs after we started using the test,” said Alan.

“Unfortunately, the test didn’t have the positive impact that we expected,” said Margie. “That’s why we stopped using it. But we didn’t know what the results would be when we started using the test, so I’m not sure how the EEOC can claim that we intended to discriminate against women.”

“I agree,” said Alan. “We acted in good faith when we implemented the test. We’ll challenge this lawsuit.”

Did the company win?

No. The company lost. The court said the lawsuit could proceed.

The judge pointed out that the physical abilities test had a so-called disparate impact on female job applicants, with only 52% of women job seekers passing the test, while 94% of male applicants were able to successfully navigate the test. In that case, it didn’t matter what the intentions of the company were. On the face of it, the test had an unfair effect on female job seekers, and it was therefore discriminatory.

The court also observed that the company was unable to justify the use of the test based on business needs. In fact, the use of the test didn’t reduce the employer’s injury rates or workers’ comp costs, so there was no legitimate business reason for using it.

What it means: Tests can’t have a ‘disparate impact’

If your employer uses a physical abilities test or something similar to weed out candidates who can’t handle the physical requirements of the job, you should make sure that the test doesn’t have a disparate impact on one gender, as the test in this case did.

In addition, your employer has to be able to point to an actual business need for using the test. If the expectation is that it’ll reduce injuries or workers’ comp rates, make sure that it does. If you think the test isn’t justified based on business needs, let your HR manager know, because it might be time to stop using it.

Based on EEOC v. Stan Koch & Sons Trucking, Inc.

(From the Oct. 8, 2021, issue of HR Manager’s Legal Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)