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How to Respond to an EEOC RFI in a Hiring Discrimination Charge

22 Jan

Since 1993 WorkSaver has conducted hundreds of thousands of ADA and EEOC compliant fitness for duty tests (referred herein as Physical Ability Tests). Since that time, WorkSaver has been involved as an expert consultant in a nationally known EEOC case to successfully help an employer become EEOC compliant in their fitness for duty testing. WorkSaver Systems has also been a respondent to EEOC inquiries on two cases since 1993 related to alleged hiring discrimination. In both of these cases WorkSaver has been successful in answering the inquiries and defending the Client and the WorkSaver testing process.

In this newsletter, Dr. Bunch, CEO of WorkSaver Systems, shares actual questions that the EEOC submits as a request for information (RFI) and how these questions were answered by WorkSaver. By providing this information, it is hopeful that WorkSaver Clients better understand the value WorkSaver’s unique and incomparable Quality Assurance Department and it constant attention to detail as it relates to the responsibilities of the vendor, WorkSaver, and the client, employer, for maintaining proper documentation related to proper validation and administration of a physical abilities testing process

The following are actual EEOC Questions submitted as a request for information (RFI) in a hiring discrimination charge. The questions are bolded below and followed by condensed versions of WorkSaver responses. (Please note that RFI questions submitted by EEOC will be answered in detail by WorkSaver for clients and actual responses will vary depending on nature of the charge.)

EEOC Question # 1:

Describe the physical (or virtual) setting in which the relevant test(s) is administered, and the name and position of the person(s) who administers and scores each phase of the application process and relevant test(s).

WorkSaver Response:

Every WorkSaver physical abilities test (PAT) is conducted in a physical therapy clinic certified by WorkSaver. The PAT is performed and scored by a WorkSaver certified licensed physical or occupational therapist in accordance WorkSaver guidelines. Every WorkSaver PAT undergoes a quality assurance review by a team of WorkSaver Quality Assurance nurses per standard WorkSaver policies and procedures.

EEOC Question # 2:

Identify the author/creator/vendor and the original publication or creation date of the relevant test or variations.

WorkSaver Response:

The vendor is WorkSaver Employee Testing Systems LLC (dba WorkSaver Systems). WorkSaver Systems conducts physical ability tests (PATs) via a nation-wide network of affiliate WorkSaver certified clinics for various industries.

Dr. Richard Bunch, CEO and co-owner of WorkSaver Systems, is the original creator of the WorkSaver PAT protocol. The PAT protocol was initially created and utilized by Dr. Bunch in 1991 while working as an Assistant Professor at Louisiana State University Medical Center, Department of Physical Therapy. Dr. Bunch created the PAT protocol and testing process in response to the passage of the Americans with Disabilities Act in 1991.

The PAT was given a proprietary name of “WorkSaver”. On August 27, 2010. Updates and revisions of the WorkSaver protocol since 2010 have been conducted by Dr. Bunch and his business partner / co-owner, Trevor Bardarson, PT, OCS with reviews by retained labor attorneys. Dr, Bunch currently serves as C.E.O., and Mr. Bardarson currently serves as President of WorkSaver Systems.

The purpose of a WorkSaver PAT is to render an independent professional opinion as to whether or not a test recipient is able to safely demonstrate, on the day of the evaluation, the abilities to perform essential functions of a job without posing a direct threat of harm to self or others. Dr. Bunch and Mr. Bardarson have extensive experience, spanning the past 28 years, in validating essential physical demands of jobs and creating and administering legally compliant PATs.

Dr. Bunch and Mr. Bardarson lecture nationally on the topic of ADA-compliant fitness for duty testing and disability accommodation at safety, ergonomic, and medical conferences. They have been accepted as experts in functional capacities testing and ergonomics in both state and federal courts. Dr. Bunch has authored several white papers and in 2018 coauthored a medical book chapter on fitness for duty testing in a peer reviewed medical book, American College of Occupational and Environmental Medicine (ACOEM) Occupational Health Guide. Dr. Bunch’s specific contribution to this book is provided in Chapter 4, entitled Fitness for Duty. His contribution to this chapter is entitled Legal Aspects of Fitness for Duty Tests and can be reviewed starting on page 52 of the ACOEM Occupational Health. Dr. Bunch’s portion of this book chapter discusses the same legal compliance policies and procedural guidelines that are used in the WorkSaver FFD testing process.

EEOC Question # 3:

Provide a job description for all positions for which the WorkSaver test is part of the application process.

Worksaver Response

In response to this request WorkSaver attaches a copy of the FJD in question to its report and adds the following information: WorkSaver creates functional job descriptions (FJDs) based on the respective physical demands validations performed for each job. These FJD documents have detailed explanations related to the environmental demands of the job and the essential physical demands required for work tasks which include weights of materials and tools handled, push and pull forces, frequency of material handling, postural demands, and cardio demands of essential functions of the jobs. Most FJDs contain photographic records of the analyses. The FJD provides a legal foundation of the WorkSaver testing process using content validity analyses.

EEOC Question # 4:

If a local job analysis (or work study) has been completed, please provide that information for the relevant positions. Provide any technical documentation of this process, including the date that the analysis was completed, whether it was completed for purposes of developing the relevant assessment(s), and whether the analysis was completed internally by Respondent, or externally by a vendor. List all subject matter experts who were consulted regarding the job analysis, including name, demographic information for the subject matter experts (e.g., tenure, gender) and job title.

WorkSaver Response:

A local job analysis, referred to as a physical demands validation (PDV), was completed externally by WorkSaver Systems on behalf of the Employer (Client) for the following job titles: (job titles listed here) The PDV analyses were completed for purposes of developing PATs for post-offer hiring and return to work abilities assessments.

A WorkSaver PDV questionnaire and data collection form was utilized in the data collection process during the PDV. The results of the PDV analysis were translated into a functional job description.

The subject matter experts (SMEs) consulted during the actual PDV analysis included (names listed here along with information related to their job title, tenure, age and gender). The FJD created from the PDV process was reviewed and approved by (name or names listed here).

The PDV analyses of the jobs were conducted by (name of WorkSaver ergonomic expert) on (date or dates) in order to identify and validate the essential functions of each job. On (date) the WorkSaver ergonomic specialist presented to the Client at (address) to perform the PDV. The PDV completed on this date or dates was/were conducted on the job tasks for the following positions: (listing of job titles)

Upon arrival, the WorkSaver ergonomic specialist met with management at the corporate facility to discuss the plan for the day and to inform them of the steps in the PDV process. Following the meeting, the WorkSaver ergonomic specialist traveled to (work location) where work was being performed and began the PDV analysis. The process began with an interview with a manager (name, title, gender and phone number). Following the interview of Mr./Ms. XYZ, the WorkSaver ergonomic specialist observed work being performed by the following employees onsite (names, titles, genders and phone numbers).

During the PDV analysis, photography and objective measurements were taken that included measuring weights of materials handled, dimensions and forces used on the job. Measurement tools included a weight scale, tape measure, and a push/pull force dynamometer. After observing, weighing materials / tools that required lifting and carrying and measuring push and pull forces associated with performing essential job functions, the WorkSaver ergonomic specialist was escorted to another work area (name) to conduct the PDV on other job tasks. The following employees were interviewed and shadowed (names, titles, genders and phone numbers) at the following locations: (addresses)

PDV data was translated into a functional job description (FJD) by the WorkSaver ergonomic specialist and submitted to the WorkSaver office for administrative review on (date). After a review was conducted by the WorkSaver administrative staff, the initial draft of the FJD was submitted to the Client for their review and approval on (date). The description of physical demands requirements that were identified during the PDV are reviewable in the attached FJDs. These FJDs include photographs taken during the PDV analysis.

EEOC Question # 5:

Describe the process that led to Respondent’s implementation of the WorkSaver Test, including the names and titles of all key decision makers involved in the process. Specify dates for when key decisions were made. Include any and all documents reviewed by any key decision makers.

WorkSaver Response:

Once the PDV was completed and the related FJD approved by the Client, WorkSaver created physical ability tests based on the essential functions of the job. Special care was taken to ensure that selection tests used in the PAT did not require functional test demands that exceeded the essential functional demands of the job.
WorkSaver followed with a detailed summary of their entire process with proper documentation that included the dates that the PDVs were conducted, dates that the FJDs created, dates of approval of the FJDs, dates of validation tests, and dates of the client’s approval to roll out the testing process.

EEOC Question # 6:

Has there ever been more than one version of the test administered to the relevant applicants? If so, describe the difference between the relevant versions and the reason(s) for the multiple versions and specify the effective dates of use for each relevant test, test component, or variation.

WorkSaver Response:

In response to this question WorkSaver provided documentation of all revisions to the FJDs and/or testing protocol and dates of those revisions.

Note: Revisions may be based on changes in the job environment, job processes or the addition or deletion of various tools used to perform the essential functions of the job. It is important for the client to update FJDs when there are changes that impact the essential functions of the job and to notify WorkSaver so that changes in the PAT protocol can be made if needed.

EEOC Question # 7:

Provide any and all internal regulations or guidelines regarding each test or variation, including any and all instructions or guidelines for individual(s) who administer the test and individual(s) who take the test. Specify relevant dates for the implementation of all such regulations and guidelines.

WorkSaver Response:

In response to this request, WorkSaver provides EEOC specific guidelines for every test rendered in the WorkSaver PAT. This information is provided in WorkSaver’s Policies and procedures Manual that is issued to each WorkSaver evaluator for guidance and compliance.

EEOC Question # 8:

Provide a detailed written description of how each test, and test variation, is scored. Identify each item on the WorkSaver Systems Post-Offer Pre-Placement Evaluation that is considered in determining a “Passing” or “Failing” score, and the ranges of scores that are considered “Passing”, and “Failing”, and any other rating classification used (such as qualified/non-qualified). Provide details on the process by which any scoring/classification system was established, and provide details about the process by which the minimum score considered “Passing” was determined, including any additional technical documentation (e.g., test development manual, test scoring manual) describing the development of the scoring system. Specify dates indicating when decisions about scoring were made/adopted or changed

WorkSaver Response:

The WorkSaver PAT is based on content validation and is designed to assess whether a person is able to physically perform validated essential functions of the job without risk of direct harm to self and/or others on the day that the test is administered. In this design, we do not impose any theoretical predictive criteria or formulas related to expectations or estimations of future job performance. WorkSaver takes the position that content validation, in which the physical ability tests replicate validated real work activities, is the best and most valid method to assess work ability on the day of the examination. A content validated PAT maintains the pass/fail bar at the level of the direct threat of harm standard.

Test criteria used in the WorkSaver PAT protocol are based on the demonstration of the test recipient’s physical ability to safely complete essential job functions. A minimum passing score for each test occurs when the test recipient demonstrates that he/she is physically able to demonstrate the ability to safely perform a job-specific functional task within the parameters required by the job. Details of the scoring methods for EEOC were provided in an attached exhibit.

EEOC Question # 9:

Provide a detailed written description of the retake policy or process in effect for applicants who do not obtain a passing score on the test.

WorkSaver Response:

The re-take policy is an administrative function provided by the employer. A test recipient is allowed to retake a PAT only with expressed authorization by the employer. (Note, an employer should never close the door to a person who wants to re-take the PAT if the basis for re-taking the test is reasonable and follows reasonable guidelines established by the employer.)

WorkSaver provides guidance and recommendations to test recipients on how to improve physical abilities in order to successfully pass a re-test. Re-tests (re-takes) are treated as completely new evaluations. New intake forms are required to be completed by the test recipient. The evaluation would be submitted to WorkSaver like any other evaluation.

EEOC Question # 10:

Provide copies of any (local and transportability) validation studies or validation evidence relating to the use of all tests or variations identified, to include any notes or other documents concerning development and implementation of the test by Respondent. Specify dates when these studies were completed.

WorkSaver Response:

In response to this question, WorkSaver provides detailed information related to:

  1. On-site Physical Demands Validation (PDV)
  2. Creation of Job-Specific Functional job descriptions (FJDs)
  3. Validation of the PAT Testing Protocols
  4. Ongoing Analyses of Testing Outcomes

EEOC Question # 11:

The WorkSaver Systems Post-Offer Pre-Placement Evaluation states “all comments and recommendations provided in this report are based on standardized baseline procedures and job-specific functional tests in accordance with EEOC and ADA guidelines”. Please provide evidence supporting this statement.

WorkSaver Response:

WorkSaver informs EEOC that the supporting evidence for this statement is in the PAT design, policies, and procedures used by the WorkSaver System to avoid any form of unfair discriminatory practice in employee selection and job placement. WorkSaver Systems also informs EEOC that WorkSaver strictly protects private health information of the test recipient.

Experiences and expertise in prior EEOC cases are also pointed out to EEOC. For example, EEOC is informed that in 2014, WorkSaver Systems was retained by labor attorneys representing (Company XYZ*) in the EEOC case, Company XYZ vs EEOC, to validate essential job demands and later, create an EEOC-compliant PAT program. WorkSaver answered this call to be retained and conducted PDVs of Company XYZ jobs. WorkSaver Systems subsequently created PAT protocols in 2017 for the company under the watchful eyes of EEOC. WorkSaver has continued to provide PATs to this company since 2017 without any EEOC issues.

Key WorkSaver policies and procedures that support the WorkSaver Systems Post-Offer Pre-Placement Evaluation statement in question are provided to EEOC in detail.

EEOC Question # 12:

Provide copies of any (particularly, local) adverse impact studies performed for the WorkSaver fit for duty test. Specify dates when these studies were completed.

WorkSaver Response:

Test outcomes are reviewed by WorkSaver on an ongoing basis. A statistical analysis of all PAT outcomes for the client was provided to EEOC showing how many people were tested, how many were male and female, and how many were age 40 and older. The analysis using the 4/5 rules as detailed in EEOC’s Uniform Guidelines was applied. As per the Uniform Guidelines, a test that has adverse impact constitutes discrimination unless justified. The WorkSaver PAT is justified based on content validation of essential job functions in which the physical demands tested were determined to represent essential job functions. Any determination of a failure to meet job demands is based only on the failure to perform an essential job function safely and is not based on sex (gender) or age.

EEOC Question # 13:

Provide policies and procedures in place for accommodation reviews when warranted.

WorkSaver Response:

Employers will be required to submit information on how they conduct interactive accommodation reviews in compliance with the Americans with Disabilities Act. WorkSaver provides policies and procedures for conducting interactive accommodation reviews to all of its clients. All PAT failures should be reviewed by the employer for evidence of an ADA issue. WorkSaver contacts employers when the evaluator finds that a PAT failure is related to a medical condition or disability. It is essential that the employer conduct accommodation reviews even if they know they do not have any reasonable accommodations available. The failure to conduct an accommodation review when warranted is a big red flag that EEOC looks for and a common basis for a formal EEOC charge and litigation against the employer for discrimination. Employers must remember they are not obligated to offer an accommodation that creates an under hardship. Accommodations of last resort include any alternative jobs that may be available as long as the employee in question is qualified for the alternative position. Employers should contact WorkSaver whenever there is a doubt as to whether an accommodation review should be conducted.

Summary:

The types of questions received in an RFI from EEOC as described above emphasizes the need for the following actions to be taken by the employer:

  1. Employers must be able to present on demand signed documentation of acceptance of validated FJDs. Signatures of SMEs must include date of signatures, job titles, tenure in the job position, gender, and age. WorkSaver requires signatures of SMEs on the FJDs and/or critical physical demands for each job undergoing PATs. An audit by WorkSaver is being conducted this year for each WorkSaver client to make certain that proper signed documentation is in place.
  2. Employers must be able to present on demand signed documentation of validations processes used in creating the PAT protocol. WorkSaver collects this information for the employer.
  3. Employer must have a process to review disparate impact on hiring older employees (age 40 and older) and females. WorkSaver conducts statistical review of pass / fail rates for all employers and provides content validation for any disparate impact in the testing process as indicated by EEOC’s Uniform Guidelines.
  4. Employers must be able to present on demand a policy for re-taking the PAT. Employers should never deny a person the right to re-take the test if the condition or inabilities to work have been resolved. Reasonable policies and procedures for re-taking the test should be in place and applied across the board equally to all job candidates / employees.
  5. Employers must have an interactive accommodation review process in place for qualified candidates with disabilities who fail the PAT.

For more information on EEOC Compliance please contact Dr. Richard Bunch or Mr. Trevor Bardarson at WorkSaver – (800) 4214-2174

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