Application of Physical Ability Testing to Current Workforce of Transit Employees (2010) / Chapter Skim
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From page 18... ...
VEH. CODE, § 12517.2., Medical Examination Requirements, http://dmv.ca.gov/pubs/vctop/d06/vctop/d06/ vc12517_2.htm.
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Subsection A then discusses the establishment and evolution of the disparate impact doctrine, including the business necessity defense. Finally, the subsection addresses EEOC guidelines on test selection criteria, including validation.
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The Supreme Court has now held that when an employer uses a test whose results have a disparate impact on a protected class, the employer may not attempt to remedy that result by discriminating against employees not in the protected class unless there is a strong basis-in-evidence that the employer would otherwise have been liable under the federal disparate impact statute.171 The Second Circuit has held that individual supervisors are not personally liable under Title VII.172 However, the First Circuit has held that employers who mask intentional discrimination by purporting to rely on preemployment screening tests may face personal liability. For example, the First Circuit upheld a district court's monetary sanctions against a New Hampshire mayor who had claimed that physical ability tests were used to determine hiring for the town's fire department, when in fact the defendants made hiring decisions based on undisclosed subjective criteria.173 2.
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Accordingly, the Court found that the Civil Rights Act "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity." The Court held that if an employment practice that excludes members of a protected class "cannot be shown to be related to job performance, the practice is prohibited."176 The Court then noted that the employment tests had been adopted because the company thought they would generally improve the quality of the workforce, rather than on the basis of study showing that they bore "a demonstrable relationship to successful performance of the jobs" for which they were used.
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The Court rejected the finding of the lower court that the statistics cited established a prima facie case.189 The Court found that even were the statistical evidence valid, it was rebutted by the transit authority's showing that the narcotics rule was job related. The Court stated in a footnote that the authority's legitimate employment goals of safety and efficiency required excluding all methadone users from safety-sensitive positions and that those goals were significantly served by, even if not required, the rule excluding all methadone users even from non-safetysensitive positions.
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explicitly shifted the burden of proof for the business necessity defense to the defendant.197 As amended, the provision on unlawful employment practices now provides that a prima facie case of unlawful disparate impact is established if the employee shows that the employer uses an employment practice that causes a disparate impact based on protected class status and the employer fails to show that the practice is "job related for the position in question and consistent with business necessity."198 The 1991 Act specifies that the only legislative history to be considered in interpreting the new provision is a memorandum that states that "(t) he terms ‘business necessity' and ‘job related' are intended to reflect the concepts enunciated by the Supreme Court in Griggs v.
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Job Relatedness/Business Necessity Defense for Physical Ability Tests: Lower Courts The Supreme Court has not addressed the standard for evaluating use of physical fitness tests as a screening device for employment purposes.207 Accordingly the standard must be based on the general law of disparate impact, which means that the precise requirement for the business necessity defense varies by jurisdiction.208 The standards most widely applied include the manifest relationship test,209 the demonstrably necessary test,210 201 Brooks, supra note 174, at 29. 202 Andrew C
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The district court also relied on a report that found a significantly smaller decrease in ability to perform physical activity after a 3-minute run among officers with aerobic capacities slightly above those required by the test than the decrease in ability among those with a lesser aerobic capacity. After reviewing the facts as described above, Judge Mansmann reviewed the legal framework for examining a Title VII disparate impact claim, focusing almost exclusively on the "business necessity" prong of the job related and consistent with business necessity defense, as well as the history of the disparate impact doctrine and the introduction of the concept of business necessity as the touchstone for evaluating disparate impact claims.
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the minimum qualifications necessary for successful performance as a SEPTA transit police officer and ha[d] , thus, justified the conceded disparate impact on female candidates by showing business necessity."229 228 The district court had relied on a study that the consultant had done for the Anne Arundel County police department; however the appellate court found fault with using that study to validate the SEPTA cutoff score, in that there was no finding that the job descriptions were similar, nor that the Anne Arundel study measured for qualities relevant to qualities significant to SEPTA transit police performance.
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and yet successfully perform essential functions of the job undercuts the business necessity defense. Dial: This case involved a challenge to a strength test used by a meat packing plant, ostensibly instituted to reduce on-the-job injuries.
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Finally, although the burden of showing the existence of a less discriminatory alternative would have fallen to the EEOC if Dial had established its business necessity test, in this case showing that the other safety measures had not caused the decrease in injury was part of Dial's burden of establishing the necessity of the WTS. Takeaway: If an employment practice with disparate impact is meant to reduce injuries, the employer should be able to validate that effect; if the effect is disputed, proving validity may be part of the employer's business necessity defense; tasks in a preemployment screening test should not be more onerous than actual job tasks.
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5. EEOC Uniform Guidelines/Test Validation Some of the EEOC's most significant guidance is contained in the Uniform Guidelines on Employee Selection Procedures.244 The guidelines were originally adopted in 1978 by the EEOC, Civil Service Commission, Department of Labor, and DOJ to provide employers and others with a uniform set of principles for complying with federal law prohibiting employment practices that discriminate on the basis of race, color, religion, sex, and national origin.
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A factor to consider in this regard is whether there is a pattern of selection differences over time.255 In determining adverse impact, the EEOC first looks at the overall selection process and then examines each selection procedure within the process. If there is no overall adverse impact, there is generally no reason to examine individual components of the process.256 Adverse impact determinations should be made for each group constituting 2 percent or more of either the employer's workforce or the workforce in the relevant labor market.257 Where a specific selection procedure has been held not to be job related in similar circumstances, the employer should have evidence of the procedure's validity.
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The court also noted that the fact that substantial numbers of successful incumbent officers could not pass the test suggested that the standard for passing did not correlate to minimum qualifications necessary to successful job performance. Accordingly, the court concluded that the city had failed to demonstrate business necessity.
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. 279 Unless otherwise noted, the following EEOC guidance documents are the reference sources for requirements cited in this section: EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, www.eeoc.gov/policy/docs/medfin5.pdf; EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, No.
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After a conditional job offer is extended, disability-related inquiries and medical exams are permitted regardless of relation to the job, provided that the employer makes inquiries and conducts exams for all employees in the same job category and the medical exams are the last step in the hiring process.291 Although postoffer medical exams or medical inquiries need not be job related and consistent with business necessity, if an applicant is not hired because such exam or inquiry reveals a disability, the reason for not hiring must be job related and consistent with business necessity.292 289 The EEOC defines "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health." Preemployment DisabilityRelated Questions and Medical Examinations, www.eeoc.gov/policy/docs/medfin5.pdf, at 13.
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Questions not likely to elicit information about a disability and thus permitted at any time include questions about an employee's general well-being, the employee's ability to perform job functions, and the employee's current use of illegal drugs.297 The Second Circuit has held that a requirement that a return-to-work certificate contain a general diagnosis raises sufficient potential to reveal a disability or perception thereof may only be allowed as a business necessity.298 Business necessity in this context must amount to more than mere expediency, such as "ensuring that the workplace is safe and secure or cutting down on egregious absenteeism. The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary."299 Examples of permissible requests for exams or releases 293 See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, No.
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The court also held that the asserted business necessity of curbing sick leave abuse was only sufficient as to the employees on the sick leave control list, and the business necessity of ensuring safety was sufficient as to bus operators and other safety-sensitive employees. As to the business necessity of deterring sick leave abuse, the court found that, given the cost of sick leave abuse and NYCT's obligation under New York law to operate on a self-sustaining basis, NYCT had demonstrated that curbing sick leave abuse was a business necessity; the medical diagnoses, due to their deterrent effect, serve the purpose of curbing sick leave abuse; NYCT had not met the burden of showing a reasonable basis for making inquiries of all employees taking leave, regardless of the amount, but had met that burden as to the employees on the control list.
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Applicability of workers' compensation for injuries suffered is also determined under state law.315 While it is clearly unlawful to conduct medical testing pre-offer, it is not clearly required that nonmedical physical ability tests meant to ensure that an applicant can reasonably perform job functions be administered pre-offer. As noted under medical inquiries, if an employee returns to work after illness or injury and displays symptoms or problems that provide objective reasons to believe that a medical condition may be causing performance problems, the employer may require the employee to undergo a medical examination.
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a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities."330 Where an employer substantially limits an employee's responsibilities based on concerns that the employee's perceived medical condition may affect the plaintiff's ability to perform time-critical, safety-related duties, the employer may be found to regard the employee as substantially limited in the major life activity of working.331 A requirement of being 100 percent disability-free has been held to qualify as considering an 325 Id.
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. 337 Section 2 of the ADAAA provides: ADAAA added definitions of "major life activities" and "regarded as having such an impairment" for purposes of the definition of "disability." In particular, the amendment requires that an impairment that substantially limits one major life activity need not do so for other major life activities to be considered a disability and that the ameliorative effects of mitigating measures (except ordinary eyeglasses and contact lenses)
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(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as -- amended the statute to require that an employer may not use uncorrected vision as a standard unless such use is shown to be job-related for the position in question and consistent with business necessity.340 Finally, the ADAAA provides that the ADA shall not provide any basis for an individual without a disability to claim that the individual was discriminated against because of the lack of disability.
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(a) ,350 and several circuits have agreed,351 some courts have required a showing of disability to challenge disability-related inquiries and medical examinations.352 Determining whether an individual is qualified under the ADA to perform essential functions of the job requires determining that the individual has "the requisite skill, experience, education and other job-related requirements of the employment position…and…with or without reasonable accommodation, can perform the essential functions" of the position in question.353 The plaintiff bears the burden of proving that he or she is qualified to perform the essential job functions, but if the employer disputes that ability, the employer must present evidence establishing the functions in ques 348 Alston v.
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The court held that the ability should be judged from evidence at the time the employee was constructively fired, and that the employee's eye tests showing distinct color vision abnormality and a diagnosis of red/green deficiency were sufficient to establish lack of ability to distinguish the colors of traffic signals. In determining that such ability was an essential function of the job, the court looked to the employer's job description, which prohibited certifying bus drivers with red, green, and amber color blindness based on New York State law.
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Another potential issue regarding essential functions is whether the ability to work an entire 8-hour shift is an essential function of a bus driver's job. In a case where a bus driver with a disability that prevented him from driving a full 8-hour shift had requested a splitshift accommodation, the Oregon District Court held that there was a genuine issue of material fact as to whether "continuous driving for eight hours is an essential function of the job."372 Establishing Reasonable Accommodation. -- The prima facie case requires the employee to be able to perform essential job functions with or without reasonable accommodation.
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A "100 percent healed" policy is a per se violation of the ADA because such a policy substitutes a blanket prohibition for the required individual assessment of whether an individual can perform the essential functions of his or her job either with or without accommodation.377 The Second Circuit has held that that there must be a causal link between the specific condition that limits a major life activity and the reasonable accommodation required, so that merely because an individual has a disability under the ADA, the employer need not accommodate another impairment resulting from the same cause as the ADA disability, if the second impairment is not itself a disability under the ADA. The court recognized, however, that adverse effects of disabilities or side effects from medical treatment of disabilities arise because of the disability and thus require accommodation.378 Once an employee requests reassignment as an accommodation, the employer must engage with the employee to determine if there is a job that the employee can perform with the employee's limitations.
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Courts have recognized safety as a legitimate business justification for an employment practice that may have disparate impact on individuals with a disability. The Eleventh Circuit held that safety concerns about beards interfering with firefighter respirators defeated a claim that the no-beard rule discriminated against plaintiffs as handicapped individuals under Section 504 of the Rehabilitation Act.390 Where OSHA standards require medical examinations or medical inquiries, such exams and inquiries do not violate the ADA.391 To the extent that OSHA standards set nondiscretionary physical requirements, those standards may form the basis for an "other federal laws" defense to challenges to employment practices that exclude or tend to seclude individuals with a disability.392 For example, if OSHA requires the employees in a specific job to wear a respirator, an employee who cannot wear a respirator because of a disability is not qualified for that job.393 Depending on the facts, the ADA may require that the agency consider transferring 387 29 C.F.R.
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Part of the Court's analysis focused on the fact that exposing an employee with a liver condition to toxic chemicals would risk violating OSHA, specifically the requirement to furnish working conditions free from recognized hazards.400 The factors to be considered in evaluating the existence of a direct threat include duration of the risk, nature and severity of the potential harm, likelihood that the potential harm will occur, and imminence of the potential harm."401 The circuit courts are split over which party bears the burden of proof on the direct threat issue, with some circuits classifying direct threat as part of the plaintiff's prima facie case and others regarding it as an affirmative defense.402 The Eleventh Circuit has held that the employee bears the burden of proof on this issue.403 The Second, Fifth, Seventh, Eighth, and Ninth Circuits have held that the defendant bears the burden of proof.404 The First Circuit has drawn a distinction between jobs involving public safety and those that do not, holding that where essential job functions implicate safety, the plaintiff bears the burden of establishing that he or she can perform them without endangering others, while where direct threat is a defense not tied to essential job functions the burden rests with the defen 399 536 U.S.
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Moreover, burdens of proof under state laws may be different than those under the ADA. For example, under the Maine Human Rights Act -- which does not require a showing of substantial limitation on a major life activity417 -- the employer bears the burden of proving that the applicant or employee "is unable to perform the duties or to perform the duties in a manner that would not endanger the health or safety of the individual or others."418 This defense requires an individualized assessment of the relationship between the specific job requirements and the applicant or employee's physical 413 EEOC v.
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Thus, where the city had not formally adopted a minimum cardiopulmonary performance requirement for spirometry tests for firefighters, an employee adversely affected by the requirement was entitled to challenge its factual basis.428 State law may require that employers may only require medical exams as a condition of employment -- that is for job applicants and current employees -- if the employer pays for the exam. Violations may result in a fine.429 State law may also limit the scope of medical inquiries.430 Takeaway: Passing muster under the ADA may not be sufficient to avoid liability under state law.
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Only leave due to the employee's own health condition, that is leave relevant to physical ability testing, is discussed in this report. 435 EEOC, the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 8, www.eeoc.gov/policy/docs/fmlaada.html.
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under the FMLA must comply with the ADA, that is, be job related and consistent with business necessity.451 The Seventh Circuit has held that a collective bargaining agreement may impose stricter return-to-work restrictions than those otherwise incorporated into the FMLA.452 An employee returning from FMLA leave is not entitled to restoration under the FMLA if the employee is unable to perform an essential function of the position because of a physical condition.453 Therefore, although the DOL regulation does not directly address physical ability testing, such testing should be allowed provided that it is job related and consistent with business necessity. This FMLA issue does not affect any obligations the employer may have under such circumstances under the ADA, however.454 The Supreme Court has held that states are subject to suit for violations of the FMLA, ruling that the FMLA constitutionally abrogates states' immunity from suit.455 Takeaway: An employer may require all employees returning from FMLA to provide a return-to-work certification attesting to the fact that the condition that required leave no longer prevents the employee from performing essential functions of the job, provided that such requirement is uniformly applied.
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The Court reviewed the compelling government interest, balanced the government interest against the privacy interests at stake, and found that the government interest justified the limited intrusion on those privacy interests, even absent a warrant or individualized suspicion.464 In a case argued and decided the same day as Skinner, the Court found that drug testing implemented by the Customs Service also constituted a search subject to the Fourth Amendment but was also justified under the special needs analysis.465 While the Supreme Court has not addressed the specific issue of drug and alcohol testing of transit employees, numerous lower courts have done so. For example, not long after Skinner was decided, a New York district court applied the special needs analysis to NYCT's drug testing.466 A class of plaintiffs including both applicants and employees challenged the testing on grounds both 464 Skinner v.
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they resume work after an incident while on duty."468 The Ninth Circuit upheld drug and alcohol testing of transit employees, albeit in an unpublished opinion.469 The plaintiffs were a bus dispatcher and a transit operations supervisor/instructor. The district court had engaged in the balancing test for special needs drug testing, considering "(1)
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