Richard W. Bunch, PhD, PT, CBES
Physical ability tests (PATs) used for job placement of individuals upon hire or upon return to work following an injury/illness are subject to challenges from the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) and occasionally private litigants. WorkSaver is nationally known among industries and in the legal arena to offer PATs that are not only highly effective, but that are fully compliant with all federal and state laws to protect against discrimination. In fact, WorkSaver was retained several years ago in a high profile EEOC case to assist in the development of a legally compliant PAT for a mining company that faced EEOC penalties for unlawful disparate discrimination against female employees. While under EEOC review, WorkSaver validated the mining jobs, created functional job descriptions and administered legally compliant PATs. The method of validation used by WorkSaver was based on content validation which allowed the creation of a PAT protocol that utilized work simulated tests that correlated directly to the essential requirements of the job. The mining company continues today to utilize WorkSaver for PATs without any legal issues.
The use of a PAT can potentially result in liability if the test has a disparate or adverse impact without validation that the test represents essential functions of the job, i.e., that the test is job-related and consistent with business necessity. Disparate impact occurs when a test has a discriminatory effect in practice because it results in a “substantially different” and adverse rate of selection for members of a particular sex, age, race, or ethnic group. Proving job relatedness and business necessity generally comes in the form of validation evidence.
Assessing Disparate Impact
To identify whether a test has a disparate impact, the EEOC, as well as other enforcement agencies and courts, have adopted the “four-fifths (or 80 percent) rule.” The rule is a comparison of selection ratios of protected and nonprotected groups of applicants. The rule is used to determine whether the selection rate for any group is substantially less (i.e., less than 80 percent) than the selection rate for the highest group. In the case of a PAT, where the pass rate for one group is less than 80 percent of the pass rate for the most successful group, a presumption of adverse impact generally arises. To illustrate, consider this hypothetical:
Assume that a PAT test for a job results in passing 50% of females and 85% of males. Comparison of female pass rate to male pass rate is calculated by dividing 50% by 85%. This calculation, .50 ÷ .85 = .59, indicates the pass rate of women is 59% of the pass rate of men. In this example, a disparate impact exists in under the four-fifths rule, because the female pass rate (50 percent) is only 59 percent (not 80 percent or more) of the male pass rate of 85 percent. Therefore, even though all the females who passed the PAT Test may be hired the test may be deemed discriminatory by an enforcement agency—unless the test was validated as being job related and consistent with business necessity.
Proving the Validity of PATs
Proving job relatedness and business necessity generally comes in the form of validation evidence. The federal Uniform Guidelines on Employee Selection Procedures provides the framework for validating employment tests, including PATs. PATs commonly fall into one (or both) of two categories: (1) tests that simulate actual job tasks (e.g., lifting objects, pushing equipment, climbing stairs or ladders, dragging hoses, etc.) and (2) tests that more generally measure aspects of physical fitness (e.g., tests of muscle strength, balance, aerobic capacity, etc.). The second category, physical-fitness-type tests, have been a recent target of enforcement agencies because they are less intuitively job related and can be difficult to validate properly in accordance with the Uniform Guidelines.
PATs are commonly validated using content validity and/or criterion validity, both of which the Uniform Guidelines endorses. Content validation is a systematic way of accumulating evidence to demonstrate that the content of a test is representative of and relevant to the content of a job. A criterion-based validation is a study that gathers evidence to show that a test predicts or is related to job performance.
Either approach first requires a comprehensive, well-documented job analysis that focuses on the physical aspects of a job. A job analysis typically includes professional ergonomic observations of physical job tasks, such as lifting, carrying, bending, squatting, reaching, and climbing, as well as measurements of the frequency, weights, duration, and time-sensitivity requirements for all such tasks. In addition, a job analysis ordinarily includes sampling incumbent employees and their supervisors (these are the subject-matter experts) to collect their ratings of the importance, frequency, and time sensitivity of each physical task identified as an essential component of a job. If an employer will be using a PAT at multiple locations, the job analysis may also need to evaluate whether there are any variations in the physical requirements for the same job at different locations.
With a thorough job analysis in hand, content validation can demonstrate that a PAT is job related because it simulates essential physical job requirements. For example, a test that requires an applicant for a warehouse position to demonstrate that he or she can climb a ladder, squat to knee level, lift a 30-pound object and carry it 20 feet 10 times in 5 minutes, may be content validated by the accumulation of sufficient evidence to demonstrate that the job actually requires doing those tasks.
Criterion validation can demonstrate that the results of a PAT predict or are significantly correlated with employees’ actual proficiency on the job. Criterion validity typically requires that a test be administered to a group of current employees (“concurrent criterion validity”) or new hires (“predictive criterion validity”) and that performance data be collected and compared to test results for those same individuals. Criterion validation also requires a sufficient sample size of tested employees. It can be a costly and time-consuming process. Depending on the complexity of the job, it can also prove challenging to identify measurable job-performance data, particularly for entry-level manual jobs, for which performance measures may be limited to attendance or volume output.
Regardless of the validation methodology, analyzing required job duties is instrumental to determining whether a test reflects the essential physical requirements of a job. Employers should review their PATs to ensure they do not test for more difficult tasks than those normally encountered on the job. Employers should so run current employees (men and women less than age 40 and age 40 and older) through the PAT to get their feedback on whether the PAT test accurately represents the physical demands of their jobs. In addition, employers may consider revalidating PATs periodically, especially if employees’ job duties have changed (e.g., if automation is added). By taking steps to validate PATs in accordance with the Uniform Guidelines, employers may be able to screen for applicants who are physically qualified to perform jobs, while mitigating the risk of legal challenges based on disparate impact.
Note: WorkSaver always recommends the use of content validation for creation of a PAT. It is significantly less costly to the employer and when performed correctly, much less likely than criterion-based validation to elicit an allegation of discrimination by the employee being tested.
For more information on WorkSaver’s validation process or for further clarification on the differences between content and criterion validation studies, please contact WorkSaver at (800) 414-2174 or e-mail Dr. Bunch at firstname.lastname@example.org or Trevor Bardarson at email@example.com.