Could Pre-Employment Strength Testing Equal Discrimination?

the situation

Prior to hiring candidates for specific positions with certain physical requirements, an employer requires the candidates to undergo a strength test.  If this ends up weeding out more women than men, could this be discriminatory?

the ruling

It could be.  CSX Transportation, Inc. just agreed to pay $3.2 million and provide some other relief to settle a lawsuit brought against it by the EEOC claiming company-wide sex discrimination based on this type of test.  EEOC v. CSX Transportation, Inc., Case No. 3:17-cv-03731 (S.D.W.Va 2017).  The EEOC took issue with the fact that CSX conducted isokinetic strength testing as a requirement of being hired for certain positions. The EEOC claimed that these tests had a discriminatory impact on women seeking jobs as conductors, material handler/clerks, and a number of other positions.  Additionally, the EEOC claimed that a couple other pre-employment tests used by CSX (three minute step test to measure aerobic capacity and a discontinued arm endurance test) also had a discriminatory impact on females.

Even if a test is facially neutral and there is no intent to discriminate between women and men, if it ultimately has a discriminatory effect on one sex or the other (or another protected class), it maybe unlawful under Title VII.  If there is a disparate impact on one protected class, the employer will have a defense if it can show that the policy or practice at issue is a business necessity.  But even then, if there are other ways to achieve the goals purportedly achieved by the policy or practice having the disparate impact, the employer may still face liability under Title VII.

CSX has agreed to pay $3.2 million into a settlement fund to pay lost wages and benefits to women who were not hired because of these testing practices.  Also, CSX has to stop using the tests and before implementing any new pre-hire tests like this, hire an expert to conduct studies about the potential impact.

the point

Employers often believe that as long as they are applying a policy evenly to all, they should be safe from any claims of discrimination. But this is not always the case and employers need to be aware that whether intentional or not, if a policy or practice ends up having a largely negative impact primarily on one protected class, it could result in liability under Title VII.