By Dr. Richard Bunch, CEO, and Trevor Bardarson, President, WorkSaver Employee Testing Systems
One of the most important requirements of a properly designed physical ability test (PAT) is a test protocol that uses employee screening methods that are job-related and necessary for business. Proving job relatedness and business necessity generally requires “job-specific” validation evidence. When it comes to designing valid PATs, WorkSaver Employee Testing Systems takes a stringent stance against using computerized isometric and isokinetic strength testing devices. The basis for this stance is that valid correlations of computerized isokinetic and or isometric strength tests to real world job demands are difficult to obtain and costly to complete. Furthermore, computerized strength testing rarely appears job-related to the test recipient and is therefore, more likely to increase complaints of employment discrimination. WorkSaver has found that using content-validated job-simulated PATs are very economical to create and more importantly, are in full compliance with EEOC’s Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII. (See 29 C.F.R. Part 1607). A content-validated PAT that utilizes accurately designed work simulation tests effectively defends against allegations that the PAT is unrelated to the job.
So, in light of this issue, why do some clinicians conduct PATs using computerized isokinetic or isometric devices? The answer is simple. These devices do not require much time to use, can be operated by a non-clinical technician, and generate impressive looking reports. However, in order to legally use these types of computerized isometric and isokinetic devices to assess physical abilities to work, the tests must be defensible by showing job relatedness and business necessity. The only way that job relatedness of computerized strength testing can be shown is to conduct very time consuming and costly criterion-based validity analyses for each job. In other words, the criterion-based analysis must show how these tests correlate to work ability (i.e., work relatedness) and how cut-off scores are calculated. If this is not conducted properly, the employer is exposed to potential EEOC challenges and costly legal fees. It is important for employers to understand that EEOC charges are also more likely to be triggered with computerized strength testing since these types of tests seldom look like any real-world work demand that an employee will encounter on the job.
As alluded to previously, the process to prove work-relatedness of a computerized test, if done correctly, generally requires lengthy and costly criterion-based validation studies that attempt to establish pass/fail criteria that are legally defensible. For example, if a welder applicant cannot generate enough isokinetic or isometric force to pass the PAT, the employer must be able to defend the cutoff point that was used to fail the applicant if the test is later challenged. If this happens, the employer will be required to provide validation evidence that the inability to generate a certain amount of isokinetic or isometric force on the computerized device translates into the inability to perform the essential functions of the job without direct threat of harm to self and/or coworkers. In addition, if the computerized test has a disparate impact on failing older applicants or female applicants, the test must withstand the challenge to validity. Due to time requirements, extensive use of human resources and associated high costs, this type of validation is not practical for many employers. Unfortunately, clinicians who have invested in expensive computerized equipment and have hired the technicians to administer these computerized PATs, often do not understand the degree of validation required and end up getting the employer in a costly legal bind with an EEOC charge.
For the reasons previously discussed, WorkSaver advocates and utilizes only job-specific, “real world”, physical ability tests based on content validity. Content validation of a job is achieved by performing onsite assessments of essential job functions. This physical demand validation (PDV) process involves interviewing managers and employees, shadowing employees at work and making direct measurements of essential job tasks (functions). The information derived from a PDV is use to create definitive test cutoff scores for pass/fail which relate directly to whether the test recipient is able, or not able, to safely demonstrate abilities to perform essential functions of a job. Common sense dictates that an essential work demand, such as being able to safely lift 50 lbs from floor to waist level, is best conducted by having the test recipient actually demonstrate the ability to safely lift 50 lbs from the floor to the waist during the PAT. It should also be noted that if a test recipient is unable to perform a validated job simulated task in a climate controlled clinic under ideal situations, then it is very defensible to opine that the same person would not be able to perform that task in the harsher, more variable, real world work environment.
A content-validated PAT meets the job-related and business necessity criteria. In addition, the content-validated PAT can be easily perceived by the test recipient as being truly work related. A reasonable person who is unable to perform essential job specific tasks such as lifting, carrying, pushing, pulling or climbing stairs during a PAT can be expected to understand why a job offer is withdrawn. However, a person who fails a computerized strength test that generally requires exerting a force against a fixed handle, is much more likely to challenge a decision to withdraw the job offer and trigger an EEOC charge of employment discrimination.
A Case in Point – EEOC vs. CSX Transportation
The Equal Employment Opportunity Commission (EEOC) filed a suit against CSX Transportation with the charge of creating discriminatory barriers for women seeking jobs with the company. In 2008, CSX Transportation started using an isokinetic strength test known as the IPCS Biodex as a requirement for workers to be selected for various positions. This test measured the upper and lower body muscle strength of workers. The EEOC found that women passed this test at a lower rate than their male counterparts and alleged a discriminatory impact on females that were seeking positions such as Conductors, Material Handlers/Clerks, as well as various other positions.
The IPCS Biodex was not the only employment test being used by CSX. The company also administered two other tests to workers seeking positions within the company. One test was used to measure the aerobic capacity of the worker, while another test was used to assess arm endurance. These tests, like the IPCS Biodex, were not actual job-specific work simulation tests. Women also passed at lower rates in both of these tests when compared to men.
According to the complaint made by the EEOC, CSX declined to hire a class of women for a range of positions they sought with the company because they failed these employment tests, leading to a company-wide discrimination against female workers because of their sex. Title VII of the Civil Rights Act of 1964, prohibits employment practices (such as tests) that are administered to all applicants and employees regardless of sex, but that cause disparate impact on persons of a particular sex (in this case females). When disparate impact of a test exists, the employer must prove the test procedure is necessary for the safe and efficient performance of the positions for which the test is being used, and that there are no alternative reasonable testing procedures to achieve the same objective. (In this case, content-validated PATs as conducted by WorkSaver would have been an alternative reasonable and legally compliant testing process.)
After an attempt to reach a settlement through the administrative conciliation process was not successful, the EEOC sought injunctive relief and court-ordered job reinstatements, as well as payment of monetary remedies (both past and future lost wages) for all female workers adversely impacted by the testing procedures.
WorkSaver Opinions
This case clearly reflects the problems with using non-work simulated tests, such as computerized tests, that lack validation to support the basis for a test failure. If a content validated test, such as assessing the ability to pull a switch or lift a required weight (e.g., lifting a knuckle or an end-of-the-train device), was conducted instead, the pass/fail determination would be clearly based on required physical abilities to perform essential job functions. The key here is that the test must be based on an “essential” job function that cannot be easily or reasonably altered to reduce the physical demand required by modification of the job process to include the use of mechanical (ergonomic) or coworker assistance. Such a content-validated essential job demand test would meet the defense of the test procedure being necessary for the safe and efficient performance of the position for which the test is being used.
It should be noted that testing abilities to perform heavy labor-intensive jobs can be fully expected to result in higher failure rates among older individuals and females. This inevitable disparate impact of a PAT for labor intensive jobs is fully defensible if the pass/fail determinations of the PAT have been properly validated to be based only on essential functions of the jobs. This is one of the main reasons that WorkSaver proposes that the best PAT format to use to maintain effectiveness and full legal compliance involves job-simulation tests based on “content validation”.
Interested in Legally Compliant and Highly Effective Physical Ability Tests?
Since 1993, WorkSaver has successfully performed hundreds of thousands of physical ability tests (PATs) nationally for post offer job placement of new hires, for “for cause” cases, and for return to work cases. WorkSaver has extensive experience in developing highly successful physical ability tests that are fully compliant with all federal and state anti-discrimination laws dealing with job placement. WorkSaver has also been retained by labor attorneys to successfully help correct and resolve cases where employers have faced EEOC charges of hiring discrimination. If you have any questions about your current fitness for duty or physical ability testing program, or if you are interested in developing a highly effective, bullet proof, physical ability testing program, please contact the proven leader in this field, WorkSaver Systems, for a no-obligation consultation at (800) 414-2174.