When Can Pre-Employment Strength or Medical Tests End Up Becoming Trials?

This week’s topic is physical strength and agility tests as well as medical examinations.  Is an employer entitled to know a candidate’s physical and mental condition prior to hiring him or her?  Are tests that result in denying jobs to a disproportionate number of women, older people, minorities or disabled persons prohibited under the disparate impact analysis? (Click here and here for a review of disparate impact.)  What do the ADA (and Title VII) say about strength/agility/medical tests? Read on!

First: the ADA, the Code of Federal Regulations and Title VII do allow pre-employment strength & agility testing.  Second: Employers can refuse employment to applicants who aren’t physically capable of performing the essential job functions without risk of injury.  Naturally there is a caveat:  the employer must be able to show that the tasks being tested are job-related and a business necessity.  For example, if I am hiring someone to assemble objects on a production line, a manual dexterity test might be job-related and consistent with business necessity. A lifting test, however, might not be. In particular, the lifting test will be problematic if, as a result of that test, I am now screening out many candidates with disabling conditions, or many candidates in classes protected by Title VII of the Civil Rights Act, who are otherwise qualified to perform the essential job functions.

What happens when strength and agility tests result in most women being excluded from certain jobs? Are such tests created with the purpose of weeding out women? Can the employer  show that the disparate impact is an uncontrollable side effect of important safety measures? If so, a disparate impact argument  might not apply—unless the candidate can show that less or non-discriminatory alternative means of testing are available. In that case, the employer should explore those options.  The US Supreme Court first decided this issue in Abermarle Paper Co v Moody 422 US 405, 425 (1975).

More recently, in EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006) a strength test required job applicants at a sausage-making plant to carry 35-pound weights back and forth and lift them to heights of 35-65 inches. Whereas 95% of male applicants passed the test, only 40% of female applicants passed. Before Dial implemented the test almost half the workers were women. The court found the test was actually more difficult than the job and did not meet the stated purpose of reducing injuries, and upheld the lower court’s $3.3m award to 52 rejected female applicants.

Returning to the ADA: Per the EEOC’s ADA Enforcement Guidance, employers may require applicants to demonstrate how they would perform certain tasks, with or without reasonable accommodations — if they require every applicant for the specific job category to do so, and not just those who are or appear to be disabled.  Employers should state the precise physical requirements. While the employer may ask for demonstration of performance ability, it may not ask disability-related questions, or questions likely to elicit info about a disability.  While the employer can ask applicant to show how s/he might lift a 25 pound box and carry it 20 feet it cannot ask if there are any reasons why s/he would not be able to do so.

Employers  rejecting  applicants who cannot physically perform key job functions must show that rejecting the applicant on this basis is “necessary to safe and efficient job performance to survive a Title VII challenge”  Dothard v. Rawlinson 97 S.Ct.2729, 2728 (1977). An employer may require that a candidate or employee not “pose a direct threat to the health or safety of other individuals in the workplace” 42 USC Sec. 12113(b). A direct threat, according to the EEOC’s ADA Enforcement Guidance, occurs when “the individual poses a significant risk of substantial harm to him/herself or others and that the risk cannot be reduced below the direct threat level through reasonable accommodation”.  Creating such a risk is considered an inability to perform an essential job function, according to the US Supreme Court in Chevron USA Inc v Echazabal 536 US 73 (2002). (Candidate with Hepatitis C put others in danger, justifying denial of job). Please note however, that only failure to perform essential job functions justifies denying employment. Job functions are “essential” when they are fundamental to the job sought and/or because the position exists to perform that function.  Employers should consider using written job descriptions whenever possible.

What if a disabled candidate claims s/he can perform the essential job functions with accommodations?  If a) a reasonable accommodation cannot reduce or eliminate the disability (however after making an offer, an employer can conduct further medical testing or strength testing) or b) the accommodation poses undue hardship the employer need not provide the accommodation .

Can a test require use of an impaired skill? Not unless it is a job-related skill that the test is intended to measure.   A hearing impaired candidate may be entitled to a sign language interpreter for an interview as in the newly filed lawsuit by the EEOC against Toys ‘R’ Us.  However, employers need only make reasonable accommodations for those physical/mental impairments resulting from disabilities known to it. Generally applicant/employee is responsible for informing the employer that s/he needs an accommodation. While employers usually cannot ask about one’s disability before employment, it can ask for verification of the disability or need for accommodation of one requesting the accommodation.

What about medical examinations? Such a requirement at the pre-offer stage is prohibited. When and how does a strength/agility or cognitive test become a medical exam? Employers can ask for performance demonstrations, but cannot measure tests’ physiological impacts prior to making an offer. Physical agility tests are not themselves a medical exam but can become one when conducted by a medical professional or if the employer measures physiological/biological responses to the performance (e.g. taking blood pressure after a lifting test).  Psychological tests will often be seen as medical tests.  See Karakker v. Rent-a-Center 411 F.3d 831 (7th Circuit).  If the employer can show a business necessity, however,  it may be permissible. Again, this prohibition applies to pre-offer medical testing.

Once the employer makes a conditional job offer, it can test for job-related medical conditions if does so with all candidates regardless of disability or perceived disability and keeps medical records in a separate file.  , Employers can now ask the applicant disability-related questions.  Employers can require medical exams of current employees if they can show exams to be job-related and consistent with business necessity.

So, what are our take-aways?

1. Pre-employment strength and agility tests are permissible if they test skills relevant to the job and consistent with business necessity
2. Employers can reject candidates whether disabled or not if the tests show them unable to perform essential job functions
3. Employers must provide reasonable accommodations to disabled applicants if the accommodation can reduce or eliminate the issues presented by the disability and is not an undue burden.
4. Tests can require use of impaired skills that are job-related and ones the test is intended to measure.
5. Employers can require medical tests after a conditional job offer if they are job-related.

On tap for next week: GINA and Pre-Employment Screening. Don’t miss it!

Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA  applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.

Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.

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