MED-TOX in Court ADA Decisions
Salem County Sheriff's Department
City of Boston Fire Department
Department of Fair Employment & Housing v. San
Diego County Sheriff's Department
State of Connecticut
United States Supreme Court held unanimously (opinion by Souter) that
the threat-to-self defense reasonably falls within the general
and business necessity standard of the Americans with Disabilities Act
1990 (ADA) and permits the EEOC regulation authorizing employers to
job to a disabled individual because performance on the job would
his own health or safety. According
to the Court, medical screening decisions "must be based on a
reasonable medical judgment that relies on the most current medical
knowledge and/or best available objective evidence, and upon an
expressly individualized assessment of the individuals present ability
to safely perform the essential functions of the job, reached after
considering, among other things, the imminence of the risk and the
severity of the harm portended."
decision upholds the EEOC's regulations allowing an employer to screen
out persons who have disabilities if the work itself could pose a
direct threat to the health or safety of the individual. An important
part of this decision is the Court's statement that safe
performance can be an essential function of the job. EEOC
attorneys have argued that safe performance is not an essential
function of the job in some court cases. For example, in a case where
an individual had limited vision and wanted to drive a commercial
vehicle, the EEOC argued that the essential function of the job was to
drive -- not drive safely as the employer expected. This 9-0 decision
will make it much more difficult for the EEOC to reduce safety
standards in the workplace.
US AIRWAYS v.
United States Supreme Court held (5-4) that altering a seniority system
for the purposes of accommodating
a disabled employee would be an "undue hardship" to and employer and
company employees. An employee seeking accommodation could present
evidence that showed special circumstances for an exception to the
system. Robert Barnett injured his back while working for U.S. Airways,
Inc. (U.S. Airways) as a cargo handler. Barnett was transferred to a
mailroom position that was not as physically demanding. The mailroom
position later became open for bidding based on seniority. Barnett lost
his job to a senior employee when U.S. Airways refused to accommodate
him. U.S. Airways moved for summary judgment contending that the
accommodation that Barnett sought would place an "undue hardship" on
company because of the well-established seniority system. The District
Court granted the summary judgment. The Ninth Circuit reversed, stating
that seniority was merely a factor to be considered in a case-by-case
United States Supreme Court vacated the Court of Appeals
opinion and remanded the case, holding that the alteration of a
system to accommodate a disabled employee is an "undue hardship" as a
matter of law, but that the employee could still present evidence
special circumstances for an exception to the seniority system. The
reasoned that the seniority system provided uniform advancement for all
employees based on objective standards. The Court found nothing in the
ADA that suggested that Congress meant to undermine seniority
systems. Therefore, a disabled employee will bear the burden of showing
special circumstances for exception to a seniority system.
SUTTON and KIMBERLY HINTON v. UNITED AIR LINES, INC.
Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328,
42 U.S.C. Â§ 12101 et seq., prohibits certain employers
from discriminating against individuals on the basis of their
See Â§12112(a). Petitioners challenge the dismissal of their ADA action
for failure to state a claim upon which relief can be granted. We
that the complaint was properly dismissed. In reaching that result, we
hold that the determination of whether an individual is disabled should
be made with reference to measures that mitigate the individual’s
including, in this instance, eyeglasses and contact lenses. In
we hold that petitioners failed to allege properly that respondent
them as having a disability within the meaning of the ADA.
ADA requires monocular individuals, like others claiming the Act’s
protection, to prove a disability by offering evidence that the extent
of the limitation on a major life activity caused by their impairment
is substantial. The Ninth Circuit made three missteps in determining
that Kirkingburg’s amblyopia meets the ADA’s first definition of
disability, i.e., a physical or mental impairment that “substantially
limits” a major life activity, 42 U.S.C. Â§12101(2)(A).
First, although it
relied on an Equal Employment Opportunity Commission regulation that
“substantially limits” as requiring a “significant restriction]” in an
individual’s manner of performing a major life activity, see 29
CFR Â§ 1630.2(j)(ii), the court actually found that there was
a significant “difference” between the manner in which Kirkingburg sees
and the manner in which most people see. By transforming “significant
into “difference,” the court undercut the fundamental statutory
that only impairments that substantially limit the ability to perform a
major life activity constitute disabilities. Second, the court appeared
to suggest that it need not take account of a monocular individuals
to compensate for the impairment, even though it acknowledged that
brain had subconsciously done just that. Mitigating measures, however,
must be taken into account in judging whether an individual has a
disability, Sutton v. United Airlines,
Inc., ante, at ___, whether the
measures taken are with artificial aids, like medications and devices,
or with the body’s own systems. Finally, the Ninth Circuit did not pay
much heed to the statutory obligation to determine a disability’s
on a case-by-case basis. See 42 U.S.C. Â§12101(2). Some impairments
may invariably cause a substantial limitation of a major life activity,
but monocularity is not one of them, for that category embraces a group
whose members vary by, e.g., the degree of visual acuity in the
weaker eye, the extent of their compensating adjustments, and the
scope of the restrictions on their visual abilities. Pp. 6—11.
An employer who
requires as a job qualification that an
meet an otherwise applicable federal safety regulation does not have to
justify enforcing the regulation solely because its standard may be
experimentally in an individual case. Pp. 11—22.
(a) Albertsons’ job qualification was not of its own devising,
was the visual acuity standard of the Federal Motor Carrier Safety
and is binding on Albertsons. The validity of these regulations is unchallenged,
they have the force of law, and they contain no qualifying language
individualized determinations. Were it not for the waiver program,
would be no basis for questioning Albertsons’ decision, and right, to
the regulations. Pp. 11—14.
(b) The regulations establishing the waiver program did not
the basic visual acuity standards in a way that disentitles an employer
like Albertsons to insist on the basic standards. One might assume that
the general regulatory standard and the regulatory waiver standard
to be accorded equal substantive significance, but that is not the case
here. In setting the basic standards, the Federal Highway
the DOT agency responsible for overseeing the motor carrier safety
made a considered determination about the visual acuity level needed
safe operation of commercial motor vehicles in interstate commerce. In
contrast, the regulatory record made it plain that the waiver program
issue in this case was simply an experiment proposed as a means of
data, resting on a hypothesis whose confirmation or refutation would
a factual basis for possibly relaxing existing standards. Pp. 15—20.
(c) The ADA should not be read to require an employer to defend
decision not to participate in such an experiment. It is simply not
that Congress enacted the ADA with the understanding that employers
to respect the Government’s visual acuity regulation in the face of an
experimental waiver might be burdened with an obligation to defend the
regulation’s application according to its own terms.
v. UNITED PARCEL SERVICE, INC.
petitioner’s high blood pressure, he was erroneously granted
and commenced work. After the error was discovered, respondent fired
on the belief that his blood pressure exceeded the DOT’s requirements.
Petitioner brought suit under Title I of the Americans with
Act of 1990 (ADA), the District Court granted respondent summary
and the Tenth Circuit affirmed. Citing its decision in Sutton
v. United Air Lines, Inc., 130 F.3d
893, 902, aff’d, ante, p.
___, that an individual claiming a disability under the ADA should be
with regard to any mitigating or corrective measures employed, the
of Appeals held that petitioner’s hypertension is not a disability
his doctor testified that when medicated, petitioner functions normally
in everyday activities. The court also affirmed the District Court’s
that petitioner is not “regarded as” disabled under the ADA,
respondent did not terminate him on an unsubstantiated fear that he
suffer a heart attack or stroke, but because his blood pressure
the DOT’s requirements for commercial vehicle drivers.
1. Under the ADA, the determination whether petitioner’s
“substantially limits” one or more major life activities is made with
to the mitigating measures he employs. Sutton, ante, p. ___.
Tenth Circuit concluded that, when medicated, petitioner’s high blood
does not substantially limit him in any major life activity. Because
question whether petitioner is disabled when taking medication is not
this Court, there is no occasion here to consider whether he is
due to limitations that persist despite his medication or the negative
side effects of his medication. P. 4.
2. Petitioner is not “regarded as” disabled because of his high
pressure. Under Sutton, ante, at ___, a person is “regarded as”
disabled within the ADA’s meaning if, among other things, a covered
mistakenly believes that the person’s actual, nonlimiting impairment
limits one or more major life activities. Here, respondent argues that
it does not regard petitioner as substantially limited in the major
activity of working, but, rather, regards him as unqualified to work as
a UPS mechanic because he is unable to obtain DOT health certification.
When referring to the major life activity of working, the Equal
Opportunity Commission (EEOC) defines “substantially limits” as
restricted in the ability to perform either a class of jobs or a broad
range of jobs in various classes as compared to the average person
comparable training, skills and abilities.” 29 CFR Â§1630(j)(3)(i).
Thus, one must be regarded as precluded from more than a particular
Assuming without deciding that the EEOC regulations are valid, the
concludes that the evidence that petitioner is regarded as unable to
the DOT regulations is not sufficient to create a genuine issue of
fact as to whether he is regarded as unable to perform a class of jobs
utilizing his skills. At most, petitioner has shown that he is regarded
as unable to perform the job of mechanic only when that job requires
a commercial motor vehicle–a specific type of vehicle used on a highway
in interstate commerce. He has put forward no evidence that he is
as unable to perform any mechanic job that does not call for driving a
commercial motor vehicle and thus does not require DOT certification.
it is undisputed that he is generally employable as a mechanic, and
is uncontroverted evidence that he could perform a number of mechanic
Consequently, petitioner has failed to show that he is regarded as
to perform a class of jobs. Rather, the undisputed record evidence
that petitioner is, at most, regarded as unable to perform only a
job. This is insufficient, as a matter of law, to prove that petitioner
is regarded as substantially limited in the major life activity of
MANUFACTURING, KENTUCKY, INC. v. WILLIAMS
order to qualify as a person with a disability under the Americans with
Disabilities Act, the claimant must demonstrate that he has a
substantial limitation in one, or more, major life activities. These
activities must be those that "are of central importance to most
people’s daily lives." The limitations cannot be limited to merely the
inability to perform some manual tasks in a particular job. Justice
O'Connor, writing for the majority stated,
In this case,
repetitive work with hands and arms extended at or above shoulder
levels for extended periods, the manual task on which the Sixth Circuit
relied, is not an important part of
most people’s daily lives. Household chores, bathing, and brushing
one’s teeth, in contrast, are among the types of manual tasks of
central importance to people’s daily lives,
so the Sixth Circuit should not have disregarded respondent’s ability
to do these activities.
narrows the scope of the ADA to a group that might be considered the
policy prohibiting the employment of any person who had undergone
for substance abuse from safety sensitive positions. The EEOC
this policy on the grounds that the blanket exclusion violated the ADA.
The EEOC claimed the policy was not consistent with the individualized
assessment approach. The EEOC also argued that in order to exclude any
particular individual, EXXON had to show there was a direct threat when
it imposed is safety qualification standard. On appeal, to the Fifth
the court ruled that employers need not establish the existence of a
threat in each individual case. "In cases where an employer has
a general safety requirement for a position, safety is a qualification
standard no different from other requirements defended under the ADA's
business necessity provision." Determining whether a safety-base
is a business necessity involves measuring the magnitude of potential
and the likelihood of its occurrence.
Physical Ability Test Cases
test cases have a remarkable history of beginning with clarity (Griggs)
and digressing confusion. This is especially true in the physical
ability test arena. Courts have called
well-designed tests discriminatory and poorly concieved and executed
tests have passed muster. The recent history of these cases shows
that the conclusion many reached after Bush v. Gore was correct and the
facade of the independent judicary has been fully scrapped in favor of
partisanship with the judiciary.
v. HOLDER - District Court Decision
(Employment Law Daily). An FBI new
agent trainee (NAT) who failed the agency’s physical fitness test (PFT)
when he could not do 30 push-ups as required for male NATs (females
only had to do 14) was granted summary judgment on his claim that the
FBI’s disparate physical fitness requirements violated Title VII. The
federal district court in Virginia explained that obvious physiological
differences between men and women “cannot support the different
treatment reflected in the FBI’s gender-normed PFT absent a valid [bona
fide occupational qualification (BFOQ)], which is lacking here.”
agency’s cross-motion for summary judgment was denied (Bauer v Holder,
June 10, 2014, Ellis, T, III).
After the tragic events of 9/11, the plaintiff decided to become an FBI
Special Agent. However, after 22 weeks in the FBI’s NAT program, he
failed to pass the PFT, which is designed to ensure that a NAT has
“attained the necessary proficiencies in specialized knowledge, skills,
and abilities needed to effectively perform the duties” of a special
agent and to assess each NAT’s suitability for the job. NATs must meet
specific requirements in four categories: academics, firearms training,
physical/defensive tactics training, and practical applications/skills
training. Successful completion of the PFT is an FBI Academy graduation
The PFT. The PFT has four tests: (1) one-minute sit-ups, (2) 300 meter
run, (3) push-ups to maximum, and (4) 1.5 mile run. Each NAT must
achieve a minimum cumulative score of 12 points with at least one point
in each event. To achieve one point for each event, NATs must meet
certain minimum standards. Males are required to do 38 sit-ups, 30
push-ups, run 300 meters in 52.4 seconds, and run 1.5 miles in 12:42
minutes. Females must do 35 sit-ups, 14 push-ups, run 300 meters in
64.9 seconds, and run 1.5 miles in 13:59 minutes.
The PFT was
implemented in 2004, based on an FBI psychologist’s study and report.
The FBI set gender-specific standards to account for the “innate
physiological differences” between males and females. FBI special
agents are not required to pass physical fitness tests at any other
point in their careers.
The plaintiff took the PFT a total of seven times; although he passed
the push-up test one time before entering the NAT program, he failed it
every other time. However, he passed every other component of the
program and was selected by his NAT class as “class leader.” During his
22nd week in the program, when he was able to complete only 29 push-ups
rather than the required 30, he was immediately given three options: to
resign and preserve the possibility of working as an FBI intelligence
analyst; to resign and forego the possibility of any future FBI
position; or be terminated.
He chose the first option and was given a
template resignation letter to fill out. Two weeks later he was offered
an FBI intelligence analyst position, which he accepted. He filed suit
for gender discrimination, seeking reinstatement to the position of FBI
Adverse employment action.
Addressing the parties’ cross motions for
summary judgment, the court first analyzed whether the plaintiff
established an adverse employment action, given that he opted to resign
rather than be terminated to preserve the possibility of future work as
an FBI intelligence analyst.
Several factors persuaded the court to
conclude that the resignation was coerced and thus involuntary. Indeed,
he was offered no real alternative to immediate resignation other than
immediate termination; thus he had no choice but to accept the
immediate end of his special agent status. His so-called “choice” was
therefore illusory and was no choice at all.
Moreover, the plaintiff was not given a reasonable time in which to
make his decision nor permitted to select the effective date or any
other terms of his resignation. Rather, he was required to make his
decision right then and there and, when he opted to resign, required
on-the-spot to write his resignation letter. Based on this, it was
clear that the resignation amounted to a constructive discharge, which
is an adverse
action under Title VII. The fact that he was subsequently offered an
analyst position did not change this conclusion.
PFT was discriminatory.
The court next turned to the central question —
whether the FBI’s gender-normed PFT violates Title VII by requiring
male NATs to perform 30 push-ups, while female NATs must only do 14.
The FBI claimed it is not discriminatory because it is undeniable that
there are physiological differences between men and women, and the
gender-normed PFT standards simply reflect those differences to ensure
males and females are treated equally. While this argument was not
without some intuitive appeal, the court could not agree because the
resolution of the question did not depend on intuition but rather on
interpretation of Title VII.
The employee claimed the PFT violated both
Sec. 2000e-2(a)(l) (discrimination based on sex) and Sec. 2000e-2(l)
(unlawful use of cutoff scores for employment tests based on sex).
As to Sec. 2000e-2(a)(1), the plain language prohibits disparate
treatment based on sex and that clearly applied to the PFT’s
differential treatment of men and women, the court found. There was no
statutory exception for average, innate physiological differences;
Congress knew of such differences and chose to make no accommodation
for them. Nor did the statute authorize discriminating based on sex if
it resulted in equal burdens on the sexes.
Moreover, while no Supreme
Court decision addressed whether gender-normed physical fitness tests
violate Title VII, analogous cases supported the result here. In City
of Los Angeles, Dep’t. of Water & Power v. Manhart, for example,
though women live longer on average than men, the Supreme Court did not
accept this as a justification for the city’s differential treatment of
male and female employees with respect to pension fund payments.
Disparate treatment versus disparate impact.
The court noted that the
result reached was not meant to imply that gender-based fitness tests
are per se illegal under Title VII; indeed to require PFTs to use a
single standard for both males and females would likely give rise to a
disparate impact on females. Rather, the decision here was that
gender-normed PFTs are not, as some courts assume, per se legal based
solely on the assertion of physiological differences. To the court,
whether a gender-normed physical fitness test is legal and establishes
appropriate standards must be analyzed under a more rigorous and
exacting legal standard; in this context provided by Sec. 2000e-2(l).
Under Sec. 2000e-2(l), it is unlawful in selecting candidates to use
different cutoff scores for employment related tests based on a
protected characteristic, including sex.
No court has yet addressed if
the section applies to using different cutoff scores for males and
females on PFTs. Concluding that it does, the court here found that the
“common meaning of ‘employment related tests’ fits the FBI PFT like the
proverbial glove. It is a test that applicants are required to pass in
order to gain employment as FBI Special Agents.”
The court also pointed
to Ricci v. DeStefano, the Supreme Court case involving race norming in
fire department exams, and concluded that an employer may only engage
in gender norming to avoid a disparate impact on females if “there is a
strong basis in evidence of disparate-impact liability.” Here the FBI
made no such showing.
Recognizing that holding males and females to a single standard could
have a disparate impact on females, the court explained that Sec.
2000e-2(l) is not a blanket prohibition against gender-normed standards
in physical fitness tests. The way to reconcile the prohibition against
treating employees differently based on sex with the risk of disparate
impact when a single PFT standard is applied to both sexes is through
the application of the BFOQ defense.
No BFOQ defense.
“A successful BFOQ defense requires that ‘a job
qualification . . . relate to the essence, or to the central mission of
the employer’s business,’” noted the court. Two primary requirements
must be met for a policy to be a BFOQ:
(1) it must be “an objective, verifiable requirement” that (2)
“concern[s] job-related skills and aptitudes.” Here, the FBI had
sufficient evidence on the development of the PFT to show that it
provides an objective, verifiable measure of physical fitness,
including the psychologist’s reports, fitness industry standards, and
the essential task list for special agents.
However, the FBI failed to meet the second BFOQ requirement of showing
that the PFT is properly focused on “job-related skills and aptitudes.”
While the agency argued that it is designed to measure skills required
to succeed as an FBI special agent and that physically fit agents are
more productive and better handle stressful situations, the FBI
undermined its justification by failing to maintain minimum physical
fitness requirements for incumbent special agents. Thus, it could not
persuasively argue that physical fitness relates to the essence or
central mission of the FBI’s business. And while the FBI alternatively
argued that the PFT’s rationale was safety during training, that was
inconsistent with the fact that the PFT functions as a graduation
requirement rather than an admission requirement for the NAT program.
For these reasons, the FBI failed to establish a valid BFOQ defense.
v. Bauer v. Holder - Appeals Court Decision
(LEXIS LEGAL NEWS - January 12, 2016,
2:09 PM ET) -- RICHMOND, Va. — A trial court erred when it found that
gender-specific physical fitness requirements for FBI trainees violated
Title VII of the Civil Rights Act of 1964 in the case of a male trainee
who failed to graduate from the FBI Academy due to missing the physical
test cut-off by one push-up, the Fourth Circuit U.S. Court of Appeals
ruled Jan. 11 (Jay J. Bauer v. Loretta E. Lynch, Attorney General,
Department of Justice, No. 14-2323, 4th Cir.; 2016 U.S. App. LEXIS
The FBI trains its special agent recruits at the FBI Academy in
Quantico, Va. The 22-week program consists of four main components that
assess trainees’ proficiency and suitability for FBI service, each of
which must be successfully completed to graduate from the academy. The
four components are academics, firearms training, practical
applications and skills and defensive tactics and physical fitness. As
part of the last component, all trainees must pass a physical fitness
test (PFT). Every special agent recruit must pass the PFT twice: once
to gain admission to the academy and a second time to graduate.
to 2004, prospective trainees proved themselves physically fit for
admission to the academy by completing a timed 1.5-mile run. Once at
the academy, trainees were required to take a five-part test that was
comprised of pull-ups, sit-ups, push-ups, a 120-yard shuttle run and a
two-mile run. In 2003, the FBI developed the PFT, which would be used
as a requirement for both admission to and graduation from the academy.
Four events were completed in each test in the following sequence: one
minute of sit-ups, a 300-meter sprint, push-ups to exhaustion and a
1.5-mile run. Both male and female trainees had to complete the four
PFT events, but different minimum standards were established for each
sex. For each event, trainees could score one point for achieving the
minimum standards, three points for achieving the pilot study’s mean
and four or more points for above average achievement, with a maximum
of 10 points. To successfully complete the PFT, trainees had to score
at least 12 points across all four events, with at least a single point
earned in each event.
the attacks on Sept. 11, 2001, Jay Bauer applied to become an FBI
special agent. He had earned a master’s degree in speech language
pathology from Northwestern University but was rejected as an applicant
due to insufficient work experience. He continued his studies and
earned a doctorate in human communication sciences in 2004. He then
served as an assistant professor at the University of
Wisconsin-Milwaukee. Bauer applied to become a special agent a second
time in 2008.
He moved through the applicant screening process easily
passing written tests, completing interviews and satisfying the
requisite background checks. He took the PFT for the first time in
October 2008 and failed. He achieved 16 points on the test but failed
to earn a single point on the push-ups portion by completing only 25,
five short of the minimum required. The FBI allowed Bauer to retest in
January 2009, and he passed. Bauer reported to the academy for training
on March 1, 2009. He passed all academic tests, demonstrated
proficiency in his firearms and defensive tactics training and met all
expectations for the practical applications and skills components of
the academy. Bauer’s classmates also selected him as the class leader
and spokesperson for the academy graduation.
However, Bauer failed to
pass the PFT while at Quantico. During his 22 weeks at the academy,
Bauer took the PFT five times. On each occasion, he would have passed
but for his failure to perform the minimum number of push-ups. The
final time, during his final week, Bauer missed the minimum number by a
single push-up. Following his final failure of the PFT, Bauer met with
academy officials, who gave him three options: resign with the
possibility of future employment with the FBI, resign permanently or be
fired. Bauer chose the first option and immediately signed a
later, the FBI offered Bauer a position as an intelligence analyst in
its Chicago field office. He accepted and has been employed in that
position since 2009. In April 2, 2012, Bauer filed a Title VII action
against the attorney general in the U.S. District Court for the
Northern District of Illinois. He alleged that the FBI’s use of the
gender-normed PFT standards contravened two of Title VII’s provisions:
42 U.S. Code Section 2000e-16(a), which prohibits gender discrimination
by federal employers, and 42 U.S. Code Section 2000e-2(l), which
prohibits the use of different cutoff scores on employment tests on the
basis of gender. On Jan. 4, 2013, the Illinois District Court granted
the attorney general’s motion to transfer these proceedings to the
Eastern District of Virginia. On Nov. 8, 2013, the attorney general and
Bauer filed cross-motions for summary judgment. In its decision on June
10, 2014, the District Court granted Bauer’s motion and denied the
attorney general’s motion. The court rule that because Bauer would have
been required to complete fewer push-ups had he been a woman, the
gender-normed PFT standards contravene Title VII’s prohibition of
gender discrimination. For the same reason, the court determined that
the standards run afoul of Title VII’s bar against the use of different
cutoff scores on
employment tests. The attorney general appealed.
Circuit disagreed and vacated the District Court’s decision. “[E]qually
fit men and women demonstrate their fitness differently. Whether
physical fitness standards discriminate based on sex, therefore depends
on whether they require men and women to demonstrate different levels
of fitness. A singular focus on the ‘but for’ element of Bauer’s claim
offers the obvious conclusion that the numbers of push-ups men and
women must complete are not the same, but skirts the fundamental issue
of whether those normalized requirements treat men in a different
manner than women. In recognition of that distinction, we agree with
the rule enunciated in Powell and in Hale. “Put succinctly, an employer
does not contravene Title VII when it utilizes physical fitness
standards that distinguish between the sexes on the basis of their
physiological differences but impose an equal burden of compliance on
both men and women, requiring the same level of physical fitness of
each,” Judge Robert B. King wrote for the panel.
However, the appellate
judges declined the attorney general’s summary judgment request,
finding that “the resolution of Bauer’s alternative contention and the
Attorney General’s summary judgment motion requires multiple analyses
that the district court is better suited to undertake in the first
validation study conducted by SEPTA's consultant contained flaws, the
relatedness of the SEPTA test was upheld in this District Court
The case is well worth reading given the depth of discussion regarding
the issues of physical ability testing under Title VII.
Lanning decision, the Justice Department succeeded in having the
Court decision overturned and remanded. This Third Circuit ruling
contains the current thinking of the US
Department of Justice on physical ability testing. The decision is
unusual in many respects. For example, the EEOC
appears to endorse gender-based "fitness requirements" over validated
Court and the EEOC also
question whether making
arrests is even a requirement of the job of police officer. The
also discusses the need to hire only persons minimally competent for
job, since more physical ability is not related to job
The decision threatens virtually all top down selection systems in the
US and illustrates the extremes the EEOC will go to in order to achieve
equal results from valid tests that reliably demonstrate group
differences in performance.
v. SEPTA - Decision on remand
another hearing of evidence, the District Court held that
SEPTA had met its entire
burden of proof in the case in the establishment of the 12 MET aerobic
capacity requirement. In conforming to
the constraints placed on it by the Third Circuit Court of Appeals, the
court again concluded that SEPTA had successfully defended its use of
the physical ability test.
STATE OF CONNECTICUT DEPARTMENT
Connecticut's physical fitness test (PFT) for correction officer
applicants, which required a timed 1.5-mile run, violated Title VII
because it had a disparate impact on female applicants and was neither
job-related nor consistent with business necessity, a federal district
court in Connecticut has ruled (Easterling v Connecticut Dep’t of
The named plaintiff applied to work as a correction officer with the
State of Connecticut Department of Corrections. Following passage of
her written exam, she took the department’s required PFT that consisted
of four parts: (1) a sit-and-reach test; (2) a one-minute sit-up test;
(3) a one-minute push-up test; and (4) a timed 1.5-mile run. A
candidate failed the entire test if she failed any single part.
However, the minimum standards for candidates varied by gender and age.
For example, a female candidate in the 21-29 age range was required to
complete a 1.5-mile run in 14 minutes, 49 seconds, while the
corresponding standard for a male candidate in the 20-29 age group was
12 minutes, 25 seconds. Those standards were set to the 40th percentile
of performance for each age/gender cohort, as calculated by the Cooper
Over the three administrations of the PFT at issue in the case, 398
women participated in the 1.5-mile run portion of the PFT, and 221
women passed, for a passage rate of 55.5%. For the same three
administrations, 1,824 men participated in the 1.5-mile run portion of
the PFT, and 1,434 men passed, for a passage rate of 78.6%. Overall,
the ratio of the female passage rate to the male passage rate was 70.6%.
Using a statistical method known
as the “Fisher’s Exact Test,” the named plaintiff’s statistical expert
testified that the administration of the 1.5-mile run component of the
test yielded statistically significant gender disparities in outcomes.
A statistically significant disparity is a disparity that is so large
it could not have occurred by chance and, thus, a statistically
significant disparity raises an inference of causation. The plaintiff’s
expert estimated that the applicants’ performance varied from a gender
neutral result by more than four standard deviations in each of the
three administrations of the 1.5-mile run. The court explained that the
Second Circuit generally classifies a disparity as statistically
significant if the observed disparity exceeds two standard deviations.
The defendant’s sole expert on the issue of statistical disparity
reviewed the plaintiff’s expert’s statistical analysis and concluded
that his calculations were accurate. Thus, the undisputed statistical
evidence in the record supported the inference that the 1.5-mile run
component of the PFT caused a disparate impact on female applicants.
Even though the test had a disparate impact against women, the
department would not be liable under Title VII if it could show that
the test was job-related and consistent with business necessity (this
evidentiary burden is on the employer). Citing Second Circuit
precedent, the court found that the proposition that a hiring practice
is job-related if the practice is significantly correlated with
elements of work behavior that are relevant to the job (the
Significantly Correlated Standard) was the applicable standard.
Applying this standard, the court found that the department presented
no evidence showing the timed 1.5-mile run to be predictive of who
could perform the essential physical functions of the job of a
correction officer. All three of the department’s experts on the issue
of business necessity admitted that they had not empirically
demonstrated that the cut scores used by the department for the
1.5-mile run reliably predicted (i.e. correlated with) an individual’s
performance on particular job tasks as a correction officer.
The court found that the department was unable to present evidence that
the 1.5-mile run test met the Minimum Qualifications Standard because
the department’s cut-off times varied by age and gender. By definition,
cut-off times that vary by gender and age cannot represent a measure of
the minimum aerobic capacity necessary for successful performance as a
correction officer, the court reasoned, stating that only a single
cut-off time could meet this standard. Thus, under both standards, no
reasonable jury could conclude the cut-off times used by the department
for the 1.5-mile run were job-related for the correction officer
position and consistent with business necessity.
Accordingly, the court granted the named plaintiff’s motion for summary
judgment on the issue of liability and noted it would schedule a status
conference to discuss the damages phase of the case.
Clearly, this case calls into question the use of Cooper Institute
normative data to determine cut-off scores for public safety jobs.
Arbitration Case - ADA
Corporation v. Graphic Communications International Union
Arbitrator rejected the use
of medical standards that precluded individual determination. The Court
Employers frequently generalize
standards and apply those generalizations to individual employees.
No-fault attendance programs, for example, can impose sanctions on
workers for absences without regard to the individual reasons for
absence. In those cases, the employer is responding to actual conduct
and to the already realized impact on the employer's operations.
Irrespective of the reason for
the absence, the impact is identical and the response is therefore
identical. However, the generalized standards under an attendance
control program do not attempt to predict future absences and dismiss
an employee before he can be absent.
By contrast, the Occu-Med
system attempts to predict the future "injury conduct" of an employee
and imposes a sanction, albeit for non-disciplinary reasons, based upon
the estimated odds of reinjury. Given the rigid generalized standards
of the Occu-Med system as applied by Dr. Mayr, an employee has no
opportunity to take individual action to protect the bundle of economic
rights and interests represented by his job.
All medical opinions are
predictive to some extent, and all medical disqualifications have an
element of preemption. The question in these cases is the level of
proof needed before the Company may take concrete action against an
employee in order to avoid a speculative cost.
Simply citing a generalized
standard without showing that it is accepted by the medical community
as valid -- or at least that it mirrors the considered and informed
medical judgment of the Company's doctor as to this patient's condition
-- constitutes no proof at all.