Chainsaws don’t hurt people, people do. And isokinetic strength and aerobic capacity tests don’t discriminate against people, work evaluators do.

The June 13, 2018 announcement of a consent decree between the Equal Employment Opportunity Commission (EEOC) and CSX Transportation (CSX) serves as yet another wake-up call for work evaluators.

Isokinetic Strength, Arm Ergometer, Three-Minute-Step Test

In its lawsuit, the EEOC asserted that the railroad’s isokinetic strength, arm ergometer, and three-minute-step tests all disqualified women at a higher rate than men. Both internal and external candidates were required to pass the tests to obtain a wide variety of CSX jobs, including conductor/freight conductor, track worker, and painter.

Specifically, the basis of this action under Title VII of the Civil Rights Act of 1964 was a strength test known as the IPCS Biodex. This post-offer employment test (POET) was administered to more than 13,000 individuals since 2008. Analysis of the hiring rate for women who sought employment triggered a disparate impact investigation. 

Note: The mass application of one test protocol to a range of jobs tends to raise a ‘job-related’ red flag under ADA Title I.  

The IPCS Biodex protocol was used in combination with two other employment tests, one purporting to measure aerobic capacity and one seeking to test arm endurance. 

Disparate Impact

The disparate impact issue was flagged by a male pass rate of roughly 87 percent on a ‘heavy’ protocol on the isoinertial strength test as compared to just 30 percent for women. A ‘medium-heavy’ protocol had a pass rate of 94 percent for men and 47 percent for women, according to the EEOC.

A similar disparate impact occurred in the passing rates for the three-minute step test and the arm ergometer test, which is used to test arm muscle endurance, the EEOC asserted. The comparative pass rates for the step test were 87 percent for men and 63 percent for women; for the arm strength test, the rates were 98 percent for men and 83 percent for women, according to the EEOC’s complaint.

Note: The test protocol had a passing score of ‘heavy’ for some jobs and ‘medium-heavy’ for other jobs. It is not clear that the ‘heavy’ classification correlates with the Revised Handbook for Analyzing Jobs (RHAJ) system. If the ‘medium-heavy’ demand does refer to the RHAJ, it would be too vague for Title VII and ADA Title I test purposes. Precedent-setting federal cases and EEOC testimony have established that using the broad categories of Sedentary, Light, Medium, Heavy, and Very Heavy described in the RHAJ are not appropriate for employment tests under ADA Title I. 

Note: Disparate impact in and of itself is not contra to the intent of our civil rights laws. The issue has to do with the business necessity reasons behind the rate of disparity in hiring or advancement of a protected class. An example of this is the hiring of NFL linemen: an analysis of the strength demands for the position of professional football linemen would reveal the need for extraordinary speed, strength, stability, and grip strength. A very high percentage of Americans in all protected classes would not be recognized as Qualified Individuals. 

The Title VII prohibition against discrimination in employment takes a ‘top-down’ approach. That is, Title VII protects from specific but generalized actions by one group against another. To understand the failure of the testing mechanism that created EEOC v. CSX Transp., Inc., S.D. W.Va., No. 3:17-cv-03731, we turn to Section 12112 – Discrimination of the amended Americans with Disabilities Act.

A therapist or work evaluator with a background in employment testing, free of the influence of an investment in a particular type of testing hardware, and unwilling to take shortcuts in testing cannot miss the issues raised by Section 12112. The problem is quite simply defined: functional capacity evaluation, post-offer employment tests, and fit-for-duty tests must be job-related and consistent with business necessity. Understanding the meaning of ‘job-related,’ ‘consistent with business necessity,’ and ‘qualified individual’ is a step toward solving the problem.

Where Do We Fail? 

Tests that depend on a particular brand of hardware and software to answer work-ability questions posed by federal law do not answer the singular question, ‘Is this individual able to execute the physical and cognitive demands of the essential functions of the position he desires or holds?’ 

Why: testing cut-points are not set to the physical and cognitive demands of the position in question.           

Why: test administrators tend to not be well-versed in ADA Title I medical examination testing guidelines. Although one may be able to complete a test in a shorter amount of time, increased rates of employment discrimination may also occur.  

Test protocols that focus on ‘consistency of effort’ or ‘self-limiting behavior’ universally fail to recognize the purpose of employment testing. 

Why: ADA Title I does not ask the question, “Did he try hard?” Instead, the law asks, “Is this a qualified individual, able to execute the physical and cognitive demands of the essential functions of the position he holds or desires with or without reasonable accommodation?” A post-offer employment test or a functional capacity evaluation that answers the question by stating that the individual did not try hard most likely results in an adverse employment decision which based on a failed testing procedure. 

Many of us fail to recognize the connection between workers’ compensation cases and ADA Title I guidelines. Under the law, an individual in the workers’ compensation system has been pre-qualified as an individual with a disability. In most cases, this status triggers federal coverage in the area of testing and reasonable accommodation. And, given the lack of standards at the state level, federal coverage trumps no coverage. The belief that an individual has no recourse when tested unfairly is old thinking. We fail when we think that nobody is watching how we test. Plaintiff attorneys are becoming more aware of ADA Title I guidelines as they apply to testing in the workers’ compensation arena. 

The CSX test machinery failed when nobody on the testing team thought it advantageous to critique the testing protocol against current practice standards.