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EEOC Sues Colorado Trucking Company Over Post-Offer Testing Process – Blog #69

Trucking firm JBS Carriers, based in Greeley, Colorado violated federal law by using pre-employment screening procedures that improperly screen out truck driving job applicants on the basis of disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on September 28, 2018.

According to the EEOC’s lawsuit, the pre-employment screening required by JBS Carriers and administered by ErgoMed Work Systems, Inc., violates the Americans With Disabilities Act of 1991, as amended, which prohibits employment discrimination based on disability, including the perception of a disability, and makes it illegal for employers to impose standards or criteria for job applicants that have the effect of discriminating based on disability. The EEOC filed suit in U.S. District Court for the District of Colorado after first attempting to reach a voluntary settlement through its conciliation process.

EEOC v. JBS Carriers, Civil Action No. 1:18-cv-02498-RPM

Cindy Divine applied to JBS Carriers to work as a truck driver. JBS Carriers required her to travel from her home in Lake Elsinore, California to an ErgoMed screening site in Greeley, Colorado. After making the trip, ErgoMed concluded that Divine had issues with her shoulders. Although Ms. Divine told ErgoMed she did not have shoulder problems and was merely sore from carrying heavy luggage from the bus stop to her motel, ErgoMed prevented her from completing the testing that was required by JBS Carriers.

ErgoMed recommended that JBS Carriers should not hire Ms. Divine, and JBS Carriers accepted that recommendation.

Regarded as Disabled

JBS Carriers uniformly relied on ErgoMed’s recommendations regarding job applicants. By requiring and relying on ErgoMed’s screening without giving individual consideration to job applicants, the EEOC alleges JBS Carriers discriminated against its job applicants who it regarded as disabled.

Reasonable Accommodation

The EEOC also alleges that JBS Carriers failed to provide reasonable accommodation to Cindy Devine and other applicants during the testing process.

 Permanent Injunction Sought

The EEOC’s lawsuit asks the court to order JBS Carriers to provide Cindy Divine and other aggrieved individuals appropriate relief, including back wages, compensatory and punitive damages, and a permanent injunction prohibiting the company from continuing to use the screening procedures provided by ErgoMed and from engaging in any further discriminatory practices based on job applicants’ disabilities, including the perception of a disability. The EEOC also asks the court to order JBS Carriers to institute and carry out policies and practices that eradicate and prevent disability discrimination in the workplace.

“A job candidate should be evaluated based on his or her ability to do the job, not based on the ability to pass an arbitrary medical exam or onerous physical testing that is not related to the actual job requirements,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “This arrangement operates to outsource disability discrimination. The EEOC will continue to be vigilant of these types of contracting arrangements.”

EEOC District Director Elizabeth Cadle said, “Employers unnecessarily restrict the pool of eligible candidates when these kinds of medical screens are used. If a candidate is qualified and able to do the job, that candidate should be given every opportunity to compete for the job.”

JBS Carriers is the transportation affiliate of multinational meat processor JBS USA. JBS Carriers is based in Greeley and operates throughout the United States, with terminals in Wisconsin, Utah, Texas, and Georgia.

Conclusion

Much of the above verbiage came directly from the EEOC’s announcement of the federal lawsuit. It is important to note that bringing charges of employment discrimination is not proof  of the veracity of the charges. If the suit is resolved before trial, we can hope that the reasoning behind resolution will be made public.

Section 12112 (d) (3) of the Americans with Disabilities Act covers what is referred to as “employment entrance examination.” The marketing term for this exam is “Post-Offer Employment Test” or “POET.” As has been said many times in this space, those of us who practice POET must be keenly aware of the federal standards for testing. The same level of awareness applies to the practice of Functional Capacity Evaluation (FCE).

Webinar – November 8, 2018

Join me on November 8, 2018, for a free webinar. We will discuss at least three current federal actions in the area of employment testing. We may also take a look at a $5,000,000 reasonable accommodation settlement with a Seattle, Washington Mercedes-Benz dealership.

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