PUBLICATIONS

In an effort to reduce on-the-job injuries, many employers have implemented, or are considering implementing, pre-employment strength tests. As may be expected, the legality of these tests has been challenged in the courts. The Eighth U.S. Circuit Court of Appeals recently upheld an award of over three million dollars to a group of female applicants who claimed an employer’s strength-testing requirement discriminated against them. See EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006).

In this case, the EEOC filed suit on behalf of 52 women who applied to work at Dial’s meat processing plant, but were not hired because they could not pass a strength test. The test required them to carry a 35-pound bar between two frames, approximately 30 and 60 inches off the floor, and to lift and load the bar onto these frames.

This pre-employment strength test was designed to simulate a specific task of sausage packers. Prior to the use of the strength test, women comprised 46% of new hires. After the test was instituted, women comprised just 15%. Overall, 97% of male applicants passed, compared to 32% of women.

In its decision, the Eighth Circuit Court affirmed two key findings of the lower court:

1. The employer engaged in a pattern and practice of intentional discrimination by continuing to use the strength test even though it knew about the statistical differences; and
2. The strength test had an illegal disparate impact on female applicants.

While Dial acknowledged the disproportionate impact on women, it attributed the result to inherent gender differences, not intentional discrimination. The court rejected this argument because Dial had no prior data showing that female sausage lifters suffered more injuries than men because of their lack of strength. In fact, the injury data gathered prior to the testing indicated that women had fewer injuries.

In addition, Dial failed to show that its pre-employment strength test was an accurate simulation of the sausage lifter job. The EEOC expert convinced the court that the strength test was more difficult than the actual job because it required more lifts and had no rest breaks.

Lessons Learned:

Employers can draw important lessons from the Eighth Circuit’s decision, when considered with other disparate impact cases and the EEOC’s Uniform Guidelines on Employee Selection Procedures (29 C.F.R. § 1607.1, et seq.). This body of law suggests that employers should take the following measures prior to implementing a pre-employment strength test:

1. Document with clear, empirical evidence that the test is necessary to prevent injury. Consult with a professional to be sure your data support your position. Demonstrate through “professionally accepted methods” that the test relates directly to the key work behaviors for which the candidate is being evaluated. See, e.g., Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 480 (6th Cir. 1987) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)).
2. Hire an independent expert to conduct a thorough job analysis to verify the critical work behaviors required for successful, injury-free performance. See 29 C.F.R. § 1607.14.
3. Be certain the analysis contains real-life information. Interview both the workers and their supervisors, and observe all aspects of the job. See Williams v. Ford Motor Co., 187 F.3d 533 (6th Cir. 1999), which discusses the extensive analysis conducted by the testing company in developing applicant tests that involved more than just strength testing.
4. Conduct the test in an environment that, as much as possible, resembles the actual working environment.
5. Hire a third party to conduct the test to reduce the risk that subjective comments or biases will taint the decision-making process.
6. Implement the test on an interim basis to determine if it has a disparate impact on a protected group. Then evaluate the test’s effectiveness in reducing work related injuries.

Employers’ Bottom Line:

The Eighth Circuit’s decision does not hold that all applicant strength tests are illegal; however, it does illustrate the significant litigation risks for the employer. If such a test is used, the employer should be prepared for a court to scrutinize whether the test creates a disparate impact on a protected category of applicants. The best defense, of course, is to prove there is no such impact. If one does exist, however, the employer can still prevail if it can demonstrate that the test accurately reflects the requirements of the job and is consistent with business necessity.

Ford & Harrison attorneys and F&H Solutions Group consultants can assist employers in evaluating the potential risks and benefits involved in implementing applicant strength tests or other selection procedures. For further information, please contact the Ford & Harrison attorney or Solutions Group consultant with whom you usually work. You can also contact Pierre Dugan at pdugan@fhsolutionsgroup.com or 202-719-2021. The Solutions Group web site is www.fhsolutionsgroup.com.