We Don't Discriminate -- At Least We Don't Mean To...

Has your company ever had to defend allegations of employment discrimination? If not, do you know someone else who has? Maybe you're thinking you have nothing to worry about. You're an Equal Opportunity Employer. Your policies say so. You have anti-harassment and anti-discrimination policies. You would never refuse to hire or promote someone just because of their race, religion, national origin, disability, gender or the like. So you're safe, right? Maybe. You could still have problems. Even practices that seemingly have no connection to any kind of discrimination could cause you trouble -- if you're not careful. It happened to CSX Transportation, and it cost them $3.2 million to settle the case. It's happened to other employers as well. I don't want your company to be another CSX Transportation, so read on to learn what happened to them, and, more importantly, how you can make sure not to follow in their footsteps.

CSX, a Florida-based railroad, used isokinetic strength testing as part of its pre-employment screening. Now, pre-employment tests, in and of themselves, are not illegal. Neither is requiring testing for all applicants (or all applicants for a specific job) discriminatory. The strength testing consisted of a test known as the IPCS Biodex Test, along with a three-minute step test measuring aerobic capacity, and a discontinued endurance test. The problem: a) the company administered this test to applicants for conductor, and material/handler clerk positions, among other categories-- jobs for which physical strength was not a requirement; and b) the test ended up excluding a disproportionate number of otherwise qualified women. On behalf of the rejected female candidates, the EEOC sued, claiming the tests had a discriminatory impact. The railroad company either agreed, or at least realized it probably wasn't going to win at trial, and agreed to settle the case for $3.2 million. The settlement also obligates CSX to: a) stop the testing practices; and b) retain expert consultants to conduct scientific studies before it adopts any similar testing requirements in the future.

What's wrong with CSX's testing practices? It didn't single out applicants from any protected classes when it required the testing. All applicants (or at least all applicants for certain positions) had to take those tests. It didn't refuse to hire women. As far as anyone can tell, CSX never indicated any intention to refuse to hire women or to treat women any worse than men. How can this be discrimination?

Here's a crash course on discrimination theory: Our legal system essentially recognizes two types of discrimination:

a) disparate treatment, aka "classic discrimination". An employer refuses to hire certain applicants in certain classes protected under anti-discrimination laws (e.g. women, minorities). Manifestations of discriminatory intent are key here; and

b) disparate impact (or discriminatory impact): In this situation, an employer engages in a facially neutral practice. It imposes a requirement on everyone (or everyone in a particular job category) without regard to whether the applicants or employees are in any protected classes, but the requirement adversely impacts a disproportionate number of people in one or more protected classes. CSX's strength testing falls into this category.

Practices with a disparate or discriminatory impact violate Title VII of the Civil Rights Act (and all other anti-discrimination laws) as much as disparate treatment. A practice that results in a disparate impact may still be legal if it is, in the EEOC's words, "job-related and consistent with business necessity". CSX's strength training requirements were neither, however. Let's face it: train conductors generally do not need to do heavy lifting or show superior aerobic endurance.

Here's the key point about practices with disparate impact, however: Your motive is absolutely, 100% irrelevant. It doesn't matter that you had no intention of discriminating. It doesn't matter that you otherwise try to be inclusive and treat all your workers well. It doesn't matter, doesn't matter, doesn't matter.

Does this case mean you can't do pre-employment testing? No, not at all. Here's what it should mean for you:

1. If you require or plan to require pre-employment testing, make sure the tests are actually relevant to essential job functions;
2. Document what tests you require for what jobs and why;
3. Get some type of validation, i.e. studies, expert opinions, or some type of similar evidence that shows that the test in question accurately measures the candidates' ability to safely perform the tasks in question;
4. Require everyone in the same job category to take the same tests. Don't single out the women for strength tests or seemingly "older" candidates for cognitive tests.
5. If you can't find a correlation between the test and the essential job functions -- don't use it.
6. If you do use certain tests, and they do produce a disparate impact (even if they are job-related) look for another equally effective test or screening practice without the disparate impact.

You get the idea, right? OK, Happy (T)Rails! See what I did there?

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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 For more posts on relevant employment law topics or to speak with Janette on any issues you may be experiencing with your employees, visit www.theemplawyerologist.com or e-mail Janette at janette@theemplawyerologist.com