EEOC: Strength Tests Risk Bias Against Women

Are physical ability tests that measure strength and endurance naturally biased against female job applicants?

The Equal Employment Opportunity Commission (EEOC)—which recently sued CSX Transportation for sex discrimination over requiring job applicants to pass physical tests—believes so, when the testing has a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.

The EEOC alleged that the railroad's strength, endurance and aerobic capacity tests illegally screen out women from the hiring process for dozens of job types because women failed the tests at a higher rate than men.

The nationwide class-action lawsuit is part of the agency's crackdown on bias in recruitment and hiring, first announced in 2016.

Specifically, the EEOC claimed that the company's isokinetic strength, arm ergometer and three-minute step tests all disqualify women at a higher rate than men for a variety of CSX jobs, including conductor, track worker and material handler.

The first two tests gauge applicants' strength and the third test measures their aerobic capacity. According to the complaint, after testing over 13,000 job candidates, men passed the isokinetic strength testing for "heavy" jobs approximately 87 percent of the time, while the passage rate for

women seeking such positions was approximately 30 percent. Men passed the "medium-heavy" bar approximately 94 percent of the time, while the passage rate for women seeking those positions was around 47 percent. Similar disparate impact results were shown in the passing rates for the three-minute step test and the arm ergometer test, which is used to test arm muscle endurance, the EEOC said.

"Companies must refrain from using a test causing adverse impact unless it is job-related and consistent with business necessity," as required under the EEOC's Uniform Guidelines on Employee Selection Procedures (UGESP), said Philadelphia-based EEOC District Director Spencer H. Lewis Jr. "Even if a test passes that standard, an employer must adopt any comparably effective alternative practices that have less adverse impact."

Validate Employment Tests to Avoid Lawsuits

The UGESP regulations apply to all employers that use employment tests, and encompass written tests, strength and agility tests, interviews, and virtually any other assessment device or methodology used in making employment-related decisions.

Under the UGESP, an employer must demonstrate validity of the test as it applies to its own workplace and specific jobs, said Lynn Clements, director of regulatory affairs for HR consulting firm Berkshire Associates, based in Columbia, Md.

Use recognized methods of test validation (criterion, construct and content measures) to show that employment testing is compliant. "To do this, employers usually must retain a qualified industrial psychologist or testing expert," Clements said. "Relying on a test provider's general validation studies can be dangerous."

She further explained that employers can only demonstrate that a test is job-related and a business necessity if it measures abilities that workers will need on the job. For example, an employer can test candidates' ability to lift 50 pounds if the job actually requires lifting 50 pounds. "On the other hand, using a strength test that evaluates an individual's general strength, or a candidate's ability to lift 75 pounds when the job only requires lifting 30 pounds," would not be compliant. Similarly, if an employer's use of a strength test at the hiring stage ultimately translated into fewer injuries to workers, then such a test "might be job-related, as long as the employer could establish that the reduction in injuries was actually tied to the use of the test," Clements said. But the same test might not be job-related if the reduction in injuries was actually due to job rotation or other workplace changes, she added.

And even if an employer can demonstrate that a test is job-related, the person challenging the test can prevail in a lawsuit if he or she can show there is a less discriminatory alternative that would meet the employer's business need. "For example, is another test available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group?" Clements asked. "This issue often arises when an employer uses a test that was designed and validated many years ago, and the employer continues to use the test without considering whether the job has changed or new tests have been developed that might measure the same skills but have less of an impact on a protected group."

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