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MED-TOX in Court ADA Decisions


Krycicki v. Salem County Sheriff's Department

Nagel v. City of Boston Fire Department

California Department of Fair Employment & Housing v. San Diego County Sheriff's Department

Johnson v. State of Connecticut


ADA Cases

US Supreme Court

CHEVRON U.S.A v. ECHAZABAL  

The United States Supreme Court held unanimously (opinion by Souter) that the threat-to-self defense reasonably falls within the general job-related and business necessity standard of the Americans with Disabilities Act of 1990 (ADA) and permits the EEOC regulation authorizing employers to deny a job to a disabled individual because performance on the job would endanger 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."

This 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. BARNETT. 

The 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 other 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 the 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 analysis.

The United States Supreme Court vacated the Court of Appeals opinion and remanded the case, holding that the alteration of a seniority system to accommodate a disabled employee is an "undue hardship" as a matter of law, but that the employee could still present evidence showing special circumstances for an exception to the seniority system. The court 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.

KAREN SUTTON and KIMBERLY HINTON v. UNITED AIR LINES, INC. 

 The Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328, 42 U.S.C. § 12101 et seq., prohibits certain employers from discriminating against individuals on the basis of their disabilities. See §12112(a). Petitioners challenge the dismissal of their ADA action for failure to state a claim upon which relief can be granted. We conclude 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 impairment, including, in this instance, eyeglasses and contact lenses. In addition, we hold that petitioners failed to allege properly that respondent “regarded” them as having a disability within the meaning of the ADA.

ALBERTSON'S, INC.v.HALLIE KIRKINGBURG 

The 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. §12101(2)(A). First, although it relied on an Equal Employment Opportunity Commission regulation that defines “substantially limits” as requiring a “significant restriction]” in an individual’s manner of performing a major life activity, see 29 CFR § 1630.2(j)(ii), the court actually found that there was merely a significant “difference” between the manner in which Kirkingburg sees and the manner in which most people see. By transforming “significant restriction” into “difference,” the court undercut the fundamental statutory requirement 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 ability to compensate for the impairment, even though it acknowledged that Kirkingburg’s 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 existence on a case-by-case basis. See 42 U.S.C. §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 ultimate scope of the restrictions on their visual abilities. Pp. 6—11.

An employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation does not have to justify enforcing the regulation solely because its standard may be waived experimentally in an individual case. Pp. 11—22.

        (a)  Albertsons’ job qualification was not of its own devising, but was the visual acuity standard of the Federal Motor Carrier Safety Regulations, and is binding on Albertsons, see 49 CFR § 391.11. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations. Were it not for the waiver program, there would be no basis for questioning Albertsons’ decision, and right, to follow the regulations. Pp. 11—14.

        (b)  The regulations establishing the waiver program did not modify 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 ought to be accorded equal substantive significance, but that is not the case here. In setting the basic standards, the Federal Highway Administration, the DOT agency responsible for overseeing the motor carrier safety regulations, made a considered determination about the visual acuity level needed for safe operation of commercial motor vehicles in interstate commerce. In contrast, the regulatory record made it plain that the waiver program at issue in this case was simply an experiment proposed as a means of obtaining data, resting on a hypothesis whose confirmation or refutation would provide a factual basis for possibly relaxing existing standards. Pp. 15—20.

        (c)  The ADA should not be read to require an employer to defend its decision not to participate in such an experiment. It is simply not credible that Congress enacted the ADA with the understanding that employers choosing 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.

MURPHY v. UNITED PARCEL SERVICE, INC.  

Despite petitioner’s high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT’s requirements. Petitioner brought suit under Title I of the Americans with Disabilities Act of 1990 (ADA), the District Court granted respondent summary judgment, 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 assessed with regard to any mitigating or corrective measures employed, the Court of Appeals held that petitioner’s hypertension is not a disability because his doctor testified that when medicated, petitioner functions normally in everyday activities. The court also affirmed the District Court’s determination that petitioner is not “regarded as” disabled under the ADA, explaining that respondent did not terminate him on an unsubstantiated fear that he would suffer a heart attack or stroke, but because his blood pressure exceeded the DOT’s requirements for commercial vehicle drivers.

Held:

    1.  Under the ADA, the determination whether petitioner’s impairment “substantially limits” one or more major life activities is made with reference to the mitigating measures he employs. Sutton, ante, p. ___. The Tenth Circuit concluded that, when medicated, petitioner’s high blood pressure does not substantially limit him in any major life activity. Because the question whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is “disabled” 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 blood pressure. Under Sutton, ante, at ___, a person is “regarded as” disabled within the ADA’s meaning if, among other things, a covered entity mistakenly believes that the person’s actual, nonlimiting impairment substantially limits one or more major life activities. Here, respondent argues that it does not regard petitioner as substantially limited in the major life 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 Employment Opportunity Commission (EEOC) defines “substantially limits” as “significantly 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 having comparable training, skills and abilities.” 29 CFR §1630(j)(3)(i). Thus, one must be regarded as precluded from more than a particular job. Assuming without deciding that the EEOC regulations are valid, the Court concludes that the evidence that petitioner is regarded as unable to meet the DOT regulations is not sufficient to create a genuine issue of material 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 driving 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 regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification. Indeed, it is undisputed that he is generally employable as a mechanic, and there is uncontroverted evidence that he could perform a number of mechanic jobs. Consequently, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working.

TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS  

In 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.

This decision further narrows the scope of the ADA to a group that might be considered the "truly disabled."

EXXON v. EEOC  

EXXON developed a policy prohibiting the employment of any person who had undergone treatment for substance abuse from safety sensitive positions. The EEOC challenged 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 Circuit, the court ruled that employers need not establish the existence of a direct threat in each individual case. "In cases where an employer has developed 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 standard is a business necessity involves measuring the magnitude of potential harm and the likelihood of its occurrence.


Physical Ability Test Cases

Employment 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 plain unbridled partisanship with the judiciary. 

BAUER 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.”

The 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 requirement.

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 special agent. 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.

BAUER 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 379).

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.

Prior 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.

Application

Following 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 resignation letter.

Job Offer

Two weeks 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.

Ruling Vacated

The Fourth 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 instance.”


LANNING v. SEPTA

Although the initial validation study conducted by SEPTA's consultant contained flaws, the job relatedness of the SEPTA test was upheld in this District Court decision. The case is well worth reading given the depth of discussion regarding the issues of physical ability testing under Title VII.

US v. SEPTA

In appealing the Lanning decision, the Justice Department succeeded in having the District 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 physical ability tests.

The Court and the EEOC also question whether making arrests is even a requirement of the job of police officer.  The Court also discusses the need to hire only persons minimally competent for the job, since more physical ability is not related to job performance.   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. 

LANNING v. SEPTA - Decision on remand

Following 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.

EASTERLING v. STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS

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 Corrections).

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 Institute.

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.


Wisconsin Arbitration Case - ADA

Arandell-Schmidt Corporation v. Graphic Communications International Union

The Arbitrator rejected the use of medical standards that precluded individual determination. The Court held: 

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.


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