CASE QUESTIONS
Brownfield v. City of Yakima
612 F.3d 1140 (9th Cir. 2010)
A police officer began making complaints to his superiors about a fellow officer whom he believed was not spending sufficient time performing the community service work to which both officers had been assigned. At a meeting with the police chief and the officer’s supervisors, the officer became angry, demanded to see his union representative, stormed out, and later used an expletive in addressing one of his supervisors. The officer reported being “consumed” with anger and fear. A few months after the aborted meeting, the officer got in an argument with another officer during which he was visibly upset and swearing, he reported nearly losing control during a traffic stop, he was the object of a domestic violence call from his estranged wife (no charges were filed), and he made statements to officers like “It doesn’t matter how this ends.” He was ordered to undergo a Fitness for Duty Exam (FFDE). The examining doctor diagnosed a mood disorder and concluded that he was unfit for police duty due to a permanent disability. In conjunction with a subsequent pre-termination hearing, the officer obtained a second medical opinion which concurred in the view that he was currently unfit for duty, but which held out the hope that he could still be returned to duty after treatment. Although he appeared to be making progress, he was terminated after he refused to follow through with a second FFDE.
1. What was the legal issue in this case? What did the court
decide?
The legal issue was whether the city violated the ADA by requiring him to submit to a medical exam that was neither job related and consistent with business necessity nor voluntary. The appeals court affirmed the decision of the trial court that the city did not violate the ADA.
2. On what basis does the court decide that the fitness for duty exams were allowed under the ADA?
The court proceeds from the premise that the bar is set quite high for employers who attempt to show that a medical exam is a business necessity. The employer has to show that the exam is more than simply expedient. Employees cannot be required to submit to exams, including the psychological exam administered in this case, as a means of harassment or as part of fishing expeditions to identify non-work related medical issues. Nevertheless, it is possible for an employer, particularly a police department, to require a “prophylactic psychological exam” before the employee actually engages in serious misconduct on the job or harms someone. Behavior warranting an exam must go beyond mere annoyance or inefficiency to raise real questions about whether the employee can perform the job. In this case, the behavior of the officer involved “repeated volatile responses” and went well beyond occasional instances of lost temper or minor arguments.
3. The case focuses on the medical exams, but what about the termination? Is there any argument to be made that his termination violates the ADA?
The stated grounds for the termination were that he was both “insubordinate and unfit for duty.” The initial effort to terminate him was based on his condition and the medical finding that he was unfit for duty due to a permanently disabling condition. And the actual termination was also apparently based, at least in part, on his medical condition rendering him unfit for duty. Would they have terminated him anyhow if he had gone through with the second FFDE and the examining doctor concurred with the first FFDE in the assessment of his condition? Did his condition render him a direct threat to his own health and safety or that of others? If not, it seems that reasonable accommodation should have been considered. Particularly since he seemed to be getting better and at least one doctor thought that he would be able to return to work eventually, might they have accommodated him with an extended medical leave (that might also have permitted him an opportunity to deal with the aftermath of his divorce)? By not assigning him community service work - at least not with the same officer? Of course, these questions presume that the officer was an “individual with a disability” under the ADA or regarded as disabled. His diagnosis and the conclusion of the examining physician that he was permanently disabled for purposes of police work do not automatically lead to the legal conclusion that he would be considered disabled under the ADA.
4. How much does this decision rest on the particular context of police work? What if the facts were similar but the employee was a waiter at a restaurant? A stock clerk at a warehouse?
The context of police work certainly influences the decision in this case. The court refers more generally to the greater business necessity of using psychological exams in this manner when employees are engaged in “dangerous work.” But there are almost no jobs where an excessively volatile employee would not be a concern. This decision doesn’t tell us very much about how far beyond the bounds of police work its reasoning extends.
EEOC v. Dial Corp.
469 F.3d 735 (8th Cir.)
Employees assigned to the sausage packing area of a meat processing plant have a physically demanding job. They walk the equivalent of four miles a day and are required to lift approximately 35 pounds of sausage at a time to heights as high as five feet. Employees working in this area experience a disproportionate number of injuries. To deal with this problem, Dial instituted job rotation and several other changes to the work process and equipment. In addition, they instituted a strength test called the “Work Tolerance Screen” (WTS). Job applicants were asked to carry a 35 pound bar between two frames and to lift and load the bar onto these frames (set at heights similar to those of the sausage storing racks). They were told to work at their own pace for seven minutes. Their performance, including the number of lifts completed, was observed. The EEOC
sued on behalf of a group of 54 women who were denied jobs after taking the WTS (about half had been unable to complete the test).
1. What was the legal issue in this case? What did the court decide?
The plaintiffs alleged sex discrimination under both disparate treatment (pattern or practice of intentional discrimination) and adverse impact theories. The appeals court affirmed the trial court’s judgment for the plaintiffs on both theories.
2. What is the evidence that use of the strength test disadvantaged women?
There was a history of men and women working together in the sausage packing area of the plant. In the three years prior to introduction of the WTS, 46 percent of new hires were women. Following introduction of the test, which was the only change in the hiring process, the percentage of new hires who were women dropped to 15 percent. The percentage of women who passed the WTS decreased each year that the test was given, with only 8 percent of female applicants passing the test in 2002. Over the entire time period relevant to the litigation, 38 percent of female applicants passed the test, compared to ninety-seven percent of male applicants. The disparity between the pass rates for men and women was nearly ten standard deviations. There was also evidence of male and female applicants receiving similar comments on their test forms, but only the males being hired.
3. What is “content validity“? What is “criterion validity“? How did the employer attempt to show the validity of the strength test? Why was the court not convinced?
In content validation, evidence is presented showing that the test is highly representative of important aspects of performance on the job. The expert witnesses offered conflicting assessments and the court credited the EEOC’s expert who contended that the average applicant had to perform four times as many lifts as an employee on the job and did so without any rest breaks. Additionally, performing the tasks under observation as part of the hiring process led applicants to work even faster than the more measured pace that they would take on the job. In criterion validation, evidence is presented that performance on a test is correlated with one or more measures of job performance. The employer attempted to validate the WTS by showing its relationship to the number of injuries incurred by employees. The company claimed that there was a “dramatic” decrease in the number of injuries following introduction of the WTS. However, the court said that the employer had put in place other safety measures at the same time and any decrease in injuries could not be attributed to the WTS alone. Furthermore, there was evidence that injury rates had begun to fall before the WTS was introduced and that in two of the three years prior to the test’s introduction women actually had lower rates of injury than men. Since the employer could not prove that use of the WTS was job related and consistent with business necessity, there was no need for the plaintiffs to show that specific alternatives with less discriminatory effects were available to the employer.
4. What should Dial do at this point?
They need to discontinue the test. They should assess what effect removal of the test has on injury rates. They should focus on their other safety measures, including improvements in the design of the work process and job rotation. If, in light of the physically demanding nature of the job, they conclude that some form of physical strength and fitness test is still needed, they will have to design a test that more closely matches the actual job tasks and that does not require more strength than the minimum needed to perform the job safely and efficiently.
5. Do you agree with the court’s decision? Why or why not?
Lanning v. SEPTA (I), (II)
181 F.3d 478 (3rd Cir. 1999), cert. denied, 528 U.S. 1131 (2000), 308 F.3d 286 (3d Cir. 2002)
The Southeastern Pennsylvania Transit Authority adopted a physical fitness test to use in the hiring of transit officers. The test included a component in which candidates had to complete a 1.5 mile run in no more than 12 minutes. The test was created by a consulting physician who determined that while officers would not have to undertake such a run in course of their duties, the run nonetheless was an accurate measure of the aerobic capacity required to perform the job. Candidates who did not complete the run in the allotted time were excluded from any further consideration. Female candidates who were unable to successfully complete the run and denied employment challenged the test as discriminatory.
1.) What was the legal issue in this case? What did the court decide?
The employer conceded that the test disproportionately excluded women, creating adverse impact. The issue was whether the test could nonetheless be defended as job related and consistent with business necessity. More specifically, was the cut-off used in the physical fitness test (the aerobic capacity associated with the 1.5 mile run) consistent with business necessity? The court in Lanning (I) held that the concept of business necessity requires that tests with discriminatory effects use cut-off scores that measure the minimum qualifications necessary to successfully perform a job. Because the district court had upheld the test on more general grounds and had not specifically considered this question, the case was remanded to determine if in fact the designated aerobic capacity was the minimum needed to perform the job successfully. This specific question was then the issue in Lanning (II) and the appeals court affirmed the district court’s ruling that the cut-off used in the aerobic capacity test measured the minimum qualifications necessary for the job.
2 ) What is the evidence of discriminatory effects in this case?
For the years 1993 and 1996 (the years involved in the litigation), the pass rate for males was 55.6% and the pass rate for females 6.7%. In terms of the four-fifth’s rule, women
had a pass rate that was only 12% that of men (6.7%/55.6%). This is nowhere near 80%. Indeed, the outcome of the test was so lop-sided in terms of sex that SEPTA conceded the test’s discriminatory effects.
3.) What distinction is the court drawing between job relatedness and business necessity? What is the evidence that SEPTA’s aerobic capacity test is both job related and consistent with business necessity?
The court in Lanning (I) said that it is not enough for an employer to show that a challenged test measures qualifications that relate to the job. Employers must also show that a test, and any particular cut-off level used to determine who passes the test, is consistent with business necessity. In the view of the Third Circuit, this means that the cut-off score must be set no higher than necessary to measure the minimum qualifications necessary for the job. “More” of some qualification might be better, but if imposing those higher standards would create adverse impact, it is only the minimum qualifications that can be insisted upon. In contrast, the appeals court characterized the district court’s approach as a requirement that any cut-off score be “readily justifiable.” In the view of the appeals court, this would leave the door open for employers to set unnecessarily high standards on a “more is better” theory.
In Lanning (II), the appeals court approved of the district court’s implicit definition of “minimum qualifications necessary” as meaning “likely to be able to do the job.” The fact that a few candidates who fail the test could succeed on the job is not sufficient grounds to reject the cut-off as excessive if most persons failing the test would be unsuccessful on the job. There was evidence considered by the district court on remand that candidates who passed the run test had success rates on twelve different job standards ranging from 70-90%, while persons who failed the test had success rates ranging from 5-20%. In conjunction with the expert testimony of the test developer and evidence from validation studies showing that higher aerobic capacity is associated with better job performance, this was sufficient to defend SEPTA’s use of the test –particularly for a job with substantial public safety responsibility.
4 ) Because physical fitness is clearly related to doing the job of transit officer, why shouldn’t SEPTA be free to set high standards and hire only the most physically fit?
This would result in a nearly all-male transit police force. Such an outcome would be troubling from the standpoint of both equal employment opportunity and policecommunity relations. Nor is it clear that physical fitness is the most important component of this job. Hiring only the most physically fit might tend to exclude persons who are more knowledgeable or who are more proficient at resolving conflicts without resorting to physical confrontations. Saying that SEPTA must not exclude persons unless they do not meet the minimum physical fitness requirements does not mean that it must hire mediocre people. They are still free to assess candidates on numerous dimensions and choose the best candidates. Indeed, this will allow them to more fully assess candidates that they would otherwise have discarded.
JUST THE FACTS
In 2007, the New York City Police Department (NYPD) adopted a new policy regarding breathalyzer testing of officers who have used their fire arms. The policy applies whenever any officer "on or off duty, is involved in a firearms discharge within New York City which results in injury to or death of a person." The policy requires that, immediately following the incident, a "portable breathalyzer test" be administered to the police officer in a private setting. If the test yields a reading of blood-alcohol level of 0.08 or greater the legal limit for driving an automobile in New York State the officer in question must be taken to an Internal Affairs Bureau testing facility where he or she will be given a second test on a more accurate "Intoxilyzer" machine. The police officers’ union challenged the constitutionality of this policy. Does this alcohol testing violate the Fourth Amendment rights of officers? Lynch v. New York City, 589 F.3d 94 (2d Cir. 2009), cert. denied, 2010 U.S. LEXIS 8217.
The court denied the plaintiffs’ request for a preliminary injunction against the breathalyzer tests. The principal question before the court was whether the plaintiffs had demonstrated a "likelihood of success on the merits" of their claim that the breathalyzer program was not "reasonable" under the Fourth Amendment. The court concluded that the testing would be reasonable despite the absence of any individualized suspicion of wrongdoing on the part of those subject to testing because the city could establish a “special need” to do so. Testing programs upheld on this basis must not have as their primary purpose “a general interest in crime control.” If a court finds that the primary purpose of a program of searches is a "special need,” that need must be weighed against the privacy interest by examining: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs. Purposes for the testing included that it would provide evidence needed to take disciplinary action against officers, it would deter officers from carrying their firearms while under the influence of alcohol (due to the probability of detection), it would improve the department’s reputation following an incident involving the use of guns by off-duty officers, and also that it would facilitate any criminal action taken against an officer. While law enforcement was indeed one of the motives for the program, the court determined that it was not the primary motive. Thus, a “special need” analysis still applied. In conducting the balancing test needed to determine reasonableness, the court noted that police officers are in a closely scrutinized line of work, they are already subject to drug testing for illegal substances and alcohol testing on certain occasions (e.g., prepromotion), and an extensive investigative process already existed in cases of guns being discharged. The court accepted that the non-law enforcement motives for the program were important and would be effectively advanced by the testing. “NYPD officers "who may use deadly force plainly 'discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.’" Thus, the department’s need to test outweighed the privacy interests asserted by the officers.
An airline was in a hurry to hire flight attendants. After conducting interviews, it issued conditional offers of employment, contingent on successful completion of background checks and medical exams. The background checks would be completed later, but the medical exams were conducted immediately on-site by the airline’s medical department. The medical exams included blood tests that revealed the HIV-positive status of the candidates. They had not revealed their HIV status when asked to complete medical history questionnaires as part of their medical exams. The airline said that it was rescinding their conditional job offers due to their failure to disclose the information. The rejected job candidates sued under the ADA. What should the court decide?(Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005)).
The main issue considered by the court was whether the employer violated the American’s with Disabilities Act (and California’s Fair Employment and Housing Act) by obtaining medical information before a background check had been completed. The appeals court reversed the lower court’s grant of summary judgment for the employer. The decision hinged on the meaning of a “conditional offer” of employment. Any medical exams or other medical information needed by an employer must be obtained in the last stage of the hiring process, where all other obstacles to employment have been cleared away and medical status is the only issue – unless the employer can prove that it could not have reasonably done so before issuing an offer. If a conditional offer of employment is rescinded, this process makes it clear that it is the medical information that is the basis for the decision. The critical issue is when medical information is collected, not when it is used. The airline’s argument that it did not actually evaluate the medical information until it had looked at the background check information was to no avail. Nor was the fact that it was in a hurry to hire flight attendants sufficient reason for why it did not comply with the ADA.
The carrier’s reason for rescinding the offers was disputed. However, even if the airline is taken at its word and it was the falsification of medical information that was the real issue rather than their being HIV-positive, the 9th Circuit says in this case that employees cannot be terminated for providing false medical information in response to illegal medical inquiries. If there is evidence that the airline made its decisions based on the candidates’ HIV status, the airline would be very hard pressed to show that this disability rendered the candidates direct threats or unable to perform the essential functions of the flight attendant job.
The plaintiffs also sued for violations of their privacy rights under the California state constitution (which, unlike most constitutions, also covers the private sector). While persons seeking employment are generally regarded as having very minimal expectations of privacy, it might still have been reasonable – given non-disclosure of the testing in the midst of a process in which disclosure and consent forms were used liberally – for the candidates to believe that their blood would not be tested for an indicator of HIV. The court reversed a grant of summary judgment on this issue as well.
The U.S. Forest Service employs “smokejumpers” whose job it is to parachute into remote areas of national forests to fight fires. Smokejumpers must pass an annual physical fitness test that includes finishing a 1.5 mile run in 11 minutes or less. Ronnie Rucker passed the test and worked as a smokejumper each year from 1973 through 2004.
In 2005, at the age of 51, Rucker was unable to pass the running portion of the test despite making ten tries at it. Following the failed test and before Rucker could be removed from his position, he was in a plane crash on the job. Although injured, Rucker helped rescue other occupants of the plane. He subsequently received a medal of heroism for his efforts in the plane crash. In 2006, Rucker returned from medical leave and was again required to take the physical fitness test. He took the test three times and in his best effort completed the run in 11 minutes and 3 seconds. He was deemed to have failed the test and his employment was terminated. Between 2002 and 2005, test-takers under age 40 completed the run in an average of 9 minutes and 25 seconds, while those over 40 averaged 10 minutes and 18 seconds. Does Rucker have a valid adverse impact claim? Rucker v. Vilsack, 2009 U.S. Dist. LEXIS 42517 (D. Ore.).
The plaintiff’s adverse impact claim under the ADEA was dismissed. Although he was able to point to a specific employment requirement - the 1.5 mile run that must be completed in no more than 11 minutes – as the source of adverse impact, he was unable to establish a prima facie case. His statistics on average times of completion, although showing a statistically significant difference between test-takers younger than 40 and those over 40, did not suffice to establish adverse impact in pass rates and subsequent hiring. The test was clearly more difficult for older applicants, but since the test was scored pass/fail, it was immaterial that the older applicants tended to have slower times. The majority of applicants of all ages passed the test and the plaintiff did not have evidence that the test excluded older applicants from employment at a higher rate than younger applicants. Lacking a prima facie case, it also didn’t matter whether the employer had evidence that the running test was a reasonable factor other than age to use in selecting for the job of smokejumper.
PRACTICAL CONSIDERATIONS
Would you advise an employer that operates retail clothing stores to drug test? If so, under what circumstances? Using what procedures? What should be done regarding applicants or employees who test positive?
This question gives students an opportunity to consider why an employer might or might not choose to drug test in a situation where there is no legal requirement to do so and the work performed is not particularly safety-sensitive. For what is the drug test an indicator? Does it really show these things? Are there other less intrusive, and perhaps cheaper, ways of getting at these things? And if testing is deemed appropriate, then a variety of questions have to be considered regarding the circumstances under which testing will be done (e.g., pre-hire only, random) and the particular procedures to be used. Finally, thought needs to be given to what will be done with the results.
To improve employee health and lower insurance costs, many employers have turned to wellness programs. These programs typically entail an extensive baseline assessment of
current health status and incentives for participation. What should employers do to make sure that their wellness programs comply with the ADA and GINA?
The gathering of medical information, and potentially also genetic information in the form of family medical history, brings into play numerous ADA and GINA requirements. Under the ADA, employers are allowed to subject current employees to medical exams or other medical inquiries only when the information sought is job related and consistent with business necessity or voluntarily provided by the employee. The former would not apply to a wide-ranging health inventory. In order to be “voluntary,” the provision of information must not be a requirement and employees should not be penalized for not participating. However, whether providing incentives for participation such as reduced health insurance premiums makes the provision of medical information no longer voluntary is not yet clear under the ADA. There is more clarity on these issues under GINA. Employers are not permitted to obtain genetic information even if they claim it is job related and consistent with business necessity. However, there are a few exceptions to the ban on obtaining genetic information, including when such information is provided on a voluntary basis as part of health or genetic services offered by the employer. In order for this exception to apply, there must be a “knowing, voluntary, and written authorization” and the authorization form must clearly state the type of genetic information to be obtained, the purpose for doing so, and restrictions on the disclosure of genetic information thereby obtained. If a financial inducement is provided to encourage participation in the wellness program by completing a health risk assessment, employees must be allowed to not answer questions regarding genetic information (usually in the form of family medical history) without suffering loss of the inducement. Both the ADA and GINA call for confidential handling of medical and genetic information and storage apart from personnel files. GINA regulations appear to go a bit further in requiring that genetic information voluntarily provided as part of a wellness program not be accessible to “managers, supervisors, or others who make employment decisions, or to anyone else in the workplace.” It is advisable for employers to contract with an entity experienced in administering wellness programs and to have them handle the health risk assessment and the storage of this medical information. Employers should receive only aggregate data from the wellness program and not information on the health status of individuals. [To the extent that wellness programs are parts of employers’ group health plans, additional considerations involving incentives to participate and the handling of medical information arise under HIPAA and the PPACA].
Physical fitness and strength tests are likely to create adverse impact against women, as well as older workers and those with disabilities. What should employers do to minimize adverse impact when hiring for jobs that have genuine strength and physical fitness requirements?
Lanning v. SEPTA is just one of many cases dealing with this problem. There are no simple solutions that will work in all cases. Certainly, the idea of assisting candidates by making physical fitness training available for a period of time before testing is worth pursuing. Careful construction of tests and close consideration of the business necessity of cut-offs is a must, since the tests will in all likelihood be challenged. Tests should not
be comprised of activities that are inherently more difficult for persons of one sex to perform (e.g., push-ups) if there are alternative ways to assess fitness. The idea of having separate, sex-specific standards for test performance based on group norms has some appeal, but it seems to fly in the face of Title VII’s prohibition of race norming.
END OF CHAPTER QUESTIONS
1 A state mental health department adopted a policy calling for the random drug testing of all of its employees. Three employees objected to the policy and sought a court order declaring it unconstitutional as applied to them. The employees held the positions of Psychiatric Assistant II and Office Support Assistants. The department claimed that the policy was justified because of its belief that illegal drugs were being used by some department personnel and because each employee serves as a caregiver and role model with respect to patients. The evidence regarding illegal drug use concerned employees at residential facilities for mentally retarded patients. The plaintiffs did not work at these facilities. Administrators were unable to cite specific individuals or incidents, but testified that they they had been informed by staff and family members that drug use by employees at these faciliities was occurring. The department also claimed that the need for its staff to act as role models applied to all positions, as well as to both in-patient and out-patient treatment. What should the court decide? Why? (Jakubowicz v. Dittemore, 2006 U.S. Dist. LEXIS 68639 (W.D. Mo.))
The issue was whether the new random drug testing policy violated the Fourth Amendment rights of these employees. The court decided that it did. The court emphasized that in a case where drug testing occurs absent individualized suspicion of drug use, it is the public employer that bears the burden of proving the existence of a special need to test. The court agreed that there was special need to randomly drug test in the department’s habilitation centers insofar as the mentally retarded clients are especially vulnerable, a specific pattern of drug abuse existed, and other efforts to keep illegal drugs out of the facilities had failed. However none of the plaintiffs worked at one of these facilities. There was no evidence of a similar drug problem where the plaintiffs worked. Nor was it clear that the plaintiffs all had responsibility for patient care, particularly the two Office Support Assistants. The court was not persuaded by the role model argument. There was no evidence to support the claim that drug addicts being treated by the agency would be able to detect that staff were using drugs and would conclude that the agency wasn’t really serious about fighting drugs. “In the end, DMH’s decision to subject the Plaintiffs to random drug tests is nothing more than a ‘gesture or symbol’ that DMH does not approve illegal drug use.”
2. A truck driver was subjected to a random drug test and tested positive for marijuana use. After a confirmatory test verified the initial result, the driver was terminated. He denied having ever used marijuana. The driver passed a hair follicle test performed by an independent laboratory eighty-four days after the employer’s urine test, The hair follicle test is aimed at identifying persons who persistently use drugs over time. The driver also pointed to problems with the employer’s drug-testing procedures. Specifically, the drug test was administered by a supervisor despite the availability of non-supervisory employees; the container had been removed from the sealed kit before the driver arrived to be tested; the driver was not instructed to wash his hands at the proper times; access to the collection site for the specimen was not restricted; and the collection container was not kept in full view of the driver during the time between when the specimen was produced and the container was sealed. Did the employer fail to comply with the drugtesting procedures required by the Department of Transportation? If so, was it negligent in how it conducted the drug testing? Why or why not? (Mission Petroleum Carriers v. Solomon, 106 S.W.3d 705 (Tex. 2003))
The legal issue was whether the employer was negligent in how it conducted the drug test that led to the employee’s termination. The Texas Supreme Court reversed the ruling of the court of appeals. It held that the employer was not negligent Employers that drug test pursuant to Department of Transportation regulations have no common law duty of ordinary care in how they conduct the drug testing. In reaching this conclusion, the court relied heavily on the existence of mechanisms within the DOT regulations for employees to challenge deficient drug testing procedures. The Transportation Employees Testing Act and accompanying regulations do not provide employees with a private cause of action to sue over drug testing procedures. However, employees can refuse to sign consent or release forms with respect to any part of the drug testing if the employer does not follow the proper procedure; employees can refuse to initial the seal on the specimen bottle; Medical Review Officers are empowered to examine the procedures by which samples were collected and must review the chain of custody before certifying positive test results; and employees can institute administrative proceedings that could result in civil fines against the employer, inability to obtain insurance, and an unsatisfactory safety rating. The latter makes firms ineligible for certain federal contracts and prohibits them from transporting hazardous materials. While the court’s rationale is specific to employers operating under the Transportation Employees Testing Act, it also expressed concern that imposing any duty of care in drug testing would potentially undermine employment at will. If drug testing procedures were subject to review, then presumably investigations and other employer actions used to gather information leading to terminations would also be open to challenge. Foreclosing this possibility appears to have been the court’s primary concern in this case.
3
A company’s drug-testing policy allowed for drug testing of employees whose on-thejob behavior indicated the possible influence of illegal drugs or alcohol. An AfricanAmerican employee became involved in an argument with two other employees who he accused of not helping him lift heavy objects. The argument subsided without futher incident, but the next day, one of the employees involved in the dispute and another coworker complained to a manager about the African-American employee’s behavior. They alleged that he had been uncooperative and unresponsive throughout the previous day. Based on this report of “uncharacteristic behavior,” as well as rumors that the employee had previously used drugs in the workplace, the company ordered a drug test. The employee tested positive and was terminated. Previously, the same manager did not order a drug or alcohol test for a white employee who had shown up to work visibly intoxicated. Instead, the employee was issued a warning for “questionable usage.” The manager attributed the difference to his (mistaken) belief that a test for alcohol would not have revealed anything, given the two days that had elapsed before he learned of the incident. Did this employer discriminate in drug testing the African-American employee?
Terminating him? (Keys v. Foamex, 2008 U.S. App. LEXIS
3310 (7th Cir.))
The appeals court affirmed the grant of summary judgment to the employer. The plaintiff could not prove that he had been subjected to disparate treatment based on his race. The court held that the requirement to submit to drug testing was not an adverse employment action that could be challenged as discrimination. Under circuit precedent, a drug test is an adverse employment action only if it is conducted in a manner that harasses or humiliates employees. A mandatory drug test performed in a routine fashion and in accordance with the employer’s regular and legitimate practices is not actionable. Here, the company’s policy permitted the testing of any employee whose behavior indicates the influence of drugs or alcohol. The decision to require testing of the employee was made following reports of strange behavior, and not simply due to rumors of drug use. Only a few supervisors were aware that the drug test had been conducted and there was no evidence that the test was conducted in a manner calculated to humiliate or that the plaintiff had experienced it as harassment.
Regarding the discriminatory termination claim, the appeals court disagreed with the lower court in finding that there was at least one similarly-situated employee of a different race who engaged in the same conduct, but did not get tested or suffer termination (the decision to not test the other employee despite behavior similar to the plaintiffs did not remove him from the category of being similarly-situated). However, even though the plaintiff could arguably establish a prima facie case, he could not show that the employer’s stated reasons for terminating him were pretextual. He was the only one that had tested positive for illegal drugs. The court accepted the employers “convenient” explanation for why it had not tested and terminated the other employee –that the manager believed that alcohol was involved and that it would be futile to test two days later.
4 An employee of a paper mill took medical leave to have knee surgery. She was required to undergo a “physical capacity evaluation” (PCE) before being reinstated to her position. The PCE takes two days to complete and is administered by a licensed occupational therapist. The evaluation has numerous components, some of which are
taking a personal medical history; recording medications used; measuring height, weight, blood pressure and pulse; assessing range of motion; measuring lifting ability and grip strength; monitoring performance on a “job simulation task” that required lifting and pouring five gallon buckets filled with 45 pounds of sand; and measuring heart rate during a treadmill test. Based on the PCE, it was determined that she was not fit to return to her former position. Since there were no other positions available for which she was qualified, the woman was terminated. Did the employer violate the ADA? Why or why not? (Indergard v. Georgia-Pacific, 582 F.3d 1049 (9th Cir. 2009)).
The appeals court vacated the district court’s grant of summary judgment to the employer and remanded the case. The decision focused on the question of whether the PCE was a medical exam. The court concluded that it was a medical exam, and not merely a physical agility test. Hence, it was necessary on remand to determine whether the exam was job related and consistent with business necessity. While the PCE combined aspects of medical exams and physical agility tests, there was considerable evidence of the former. This evidence included the testing of range of motion and muscle strength, as well as the recording of her heart rate and observations about her breathing after the treadmill test. Recording her heart rate and breathing was not necessary to determine whether she was capable of performing the task. Nor does it appear that her heart rate was taken merely as a precaution in administering the treadmill test. Her heart rate was taken both before and after the test and included within the report. The court also considered the seven factor test found in the EEOC’s regulations and concluded that at least 4 of these factors – the test was conducted by a licensed occupational therapist – a type of health care professional; the results were interpreted by this individual, who also made a recommendation based on them; the broad reach of the test was capable of revealing the existence of physical or mental impairments; and the test incorporated physiological responses to the performance of physical tasks – were present
5. A timber company used a ‘physical performance test” to assess candidates for entrylevel positions handling lumber and cutting wood. The test was developed by industrial psychologists. In its original version, the test consisted of a “board pull ergometer” (pulling 30 to 70 lb. weights for specified durations to assess strength), a step test (stepping up and down on an 11 inch bench for six minutes), and a visual inspection of “gross body coordination.” Additionally, the applicant’s heart rate was measured during the step test to measure endurance. Applicants whose heart rates exceeded a specified level were stopped and deemed to have failed the test. The revised test consisted solely of a “weight stack” (total weight of 40 lbs.). For the three years that the original test was in effect, 70.2 percent of male applicants and 29.8 percent of the female applicants passed the test. Twenty-four percent of female applicants failed because they were stopped due to an excessive heart rate, compared to 3.2 percent of male applicants. With the revised test, 66.9 percent of males and 25.8 percent of females passed. A criterion validation study was conducted for both tests, showing statistically significant correlations between test and job performance. Females rejected for employment sued. What should the court decide? Why? (Equal Employment Opportunity Commission v. Simpson Timber Company, 1992 U.S. Dist. LEXIS 5829)
The issue was whether the test had adverse impact on women, in violation of Title VII. The court found for the plaintiffs. Both versions of the test disproportionately excluded women. The pass rate for women under the first version of the test was 42 percent of the pass rate for men. The comparable figure for the second version of the test was 45 percent. Both figures are far below the 80 percent guideline under the EEOC’s 4/5’s rule. The court acknowledged that the job requires strength and endurance. The employer’s evidence of test validity was sufficient to demonstrate the job relatedness of the test. However, the court determined that there were a number of feasible alternative testing procedures that would have less impact on women. Adjustments to the height of the bench, the cut-off score used in the step test, and the manner in which the test was administered would allow the employer to assess strength and endurance while excluding fewer women.
6 The city of Erie, Pennsylvania, used a physical agility test for hiring entry-level police officers. The test underwent various modifications over time, but basically consisted of running a 220-yard obstacle course and performing specified numbers of push-ups and sit-ups (thirteen of each in the most recent iteration of the test). Candidates passed the test by completing all of the required activities within 90–95 seconds. The test was developed by police department personnel without the input of experts in exercise physiology or industrial and organizational (I/O) psychology. During its development, the test was given to nineteen volunteers from among the existing police force. All were deemed to be performing their jobs well. The average levels of their performance on the test were used in establishing cutoffs. From 1996–2002, 71 percent of male candidates passed the physical agility test, compared to 12.9 percent of female candidates. Pass rates for individual years ranged from 54 percent to 85 percent for males and from 4 percent to 30 percent for females. At the start of litigation, about 4 percent of Erie’s police force was female. Can this physical agility test survive an adverse impact challenge? (United States of America v. City of Erie, Pennsylvania, 411 F. Supp. 2d 524 (W.D. Pa. 2005)).
Use of the test greatly disadvantaged female candidates. The four-fifth’s rule was clearly violated (12.9/71 = .18) and use of the test was a factor in producing a police force that has a much lower percentage of female officers than in surrounding jurisdictions (which ranged between 20 and 27 percent female). The case focused instead on whether the city had shown the test to be job related and consistent with business necessity. Certainly, the test as a whole could not be content validated as it consisted of activities (push-ups, situps) different from those that would actually be performed on the job (the obstacle course run was deemed to be only somewhat representative of an actual job task). The city had attempted to validate the different components of the test separately, but the court held that a validation study of the unitary test was necessary, since the time limit for successful completion applied to all of the components together and performance on one component necessarily affected performance on the others. Beyond the failure to conduct a validation study of the test as a whole, the city also had little evidence to support the establishment of 90 seconds as the time within which the test must be completed. The choice of that cut-off reflected a subjective judgment of managers that this represented an
“average” level of physical fitness. The city was also faulted for basing its “validation study” on a small, non-representative sample of volunteers who were drawn from the department’s better performers rather than on a larger sample of officers at all performance levels.
7. In the Siroka case involving the personality test that had questions relating to religion and sexual orientation, the company claimed that it had evidence of the test’s validity for hiring store security officers. Specifically, the company had given the test to 18 of its most successful store security officers and they had done well on it. Comment on the adequacy of this “validation study.”
The methodology for this “validation study” was woefully inadequate. The sample size is minuscule and does not permit any analyses broken down by race or sex. While a concurrent design using existing employees is acceptable, focusing only on high performers is exactly the wrong thing to do. In order to establish a correlation between test scores and performance, both of these must be allowed to vary. If only high performers are tested, we have no way of telling whether lower performers might have done equally well – or even better – on the test. We can also question the manner in which high performers were identified. The subjective opinions of supervisors are not sufficient as a measure of performance in criterion validation studies.
8. Staffing experts widely regard tests of general cognitive ability to be the best predictors of success at a wide range of jobs. What are the legal implications of relying on such tests?
These tests have a high probability of creating adverse impact. If the appropriate cognitive ability tests for the job are used and cut-off scores are not set higher than necessary, the tests should be legally defensible. But their discriminatory effects remain problematic. Banding of test scores offers a partial solution. There is some evidence that using open-ended questions on cognitive ability tests reduces racial gaps in performance. Providing alternatives to paper and pencil tests for candidates to demonstrate their intellectual abilities (e.g., situational interview questions) could also help. Limiting the amount of weight given to these tests could also make a difference.
9 Jobs are being transformed. Employers are increasingly focusing on processes rather than individual jobs. More work is being done in teams, with team members expected to be capable of taking on each other’s functions. What are implications of this for validating tests or other selection criteria? Has it become more difficult to determine what is “job related?”
This has not been a prominent issue in court decisions to date, but the notion of job relatedness does become much murkier when job responsibilities are broadened and change rapidly. Soft skills related to communication and teamwork become more important as selection criteria, but the means of assessing these skills are often quite subjective and susceptible to bias. The broadening of jobs is sometimes a problem for
disabled persons. A disabled person who can perform one job very well might not be able to perform other jobs that are added or to which they are expected to rotate.
FOR A CHANGE OF PACE
1) A criterion validation study of a test designed to select police officer candidates produced the following results. What do you conclude regarding whether this test should be utilized by this public employer?
Results for a Validation Study of a Written Exam for Police Officers
– Significance of Differences in Scores and Performance Ratings
Table 1 – Test Validity N correlation with
rating (r) 459 .231*** ***
Whites African-Americans t-value sig. N Mean N Mean Written Test 371 81.98 113 76.87 5.40 .001 Supervisor 330 9.51 100 8.68 3.28 .001 Rating Males Females t-value sig. N Mean N Mean Written Test 428 81.07 89 79.26 1.65 not sig. Supervisor 379 9.40 80 8.77 1.91 not sig. Ratings
supervisor’s overall
p<.001 Table 2
1) Table 1 shows evidence of a positive, statistically significant correlation between test scores and supervisors’ ratings of performance. However, the magnitude of the correlation is quite small. It suggests that the test would only be able to account for less than six percent of the variation in measured job performance. Some courts require a correlation of at least .30 as evidence of validity.
2) Given that the difference between the average test score for white candidates and African-American candidates is large and statistically significant (Table 2), the test can be expected to disproportionately limit the employment opportunities of AfricanAmericans. On average, women tended to score lower than males, but the difference is not statistically significant.
3) Since the test is not a very good predictor of job performance and it is likely to result in adverse impact, it would be better to utilize another test for which there is stronger evidence of validity and less evidence of adverse impact.
