The Equal Employment Opportunity Commission has just settled a discrimination case against Jacksonville-based CSX Transportation, Inc. (CSXT). The settlement involves what is called "disparate impact" discrimination against female job applicants.
This type of discrimination occurs when a barrier is put in the way of a particular class of workers or job applicants. Often enough, this barrier is not a pretext for intentional discrimination but is a seemingly neutral job requirement. When the barrier weighs especially hard on a protected group such as women or minorities, however, it must be both necessary and narrowly tailored to meet a job-based need.
In the case of CSXT, the barrier was a set of pre-employment fitness screenings. Even for jobs such as clerk/material handler or train conductor, the EEOC found, CSXT required all applicants to pass a strength test, an aerobic capacity test and a discontinued arm endurance test.
Women failed these tests at a higher rate than men, which resulted in more men being hired for these jobs. This constitutes a disparate impact against women.
Once a disparate impact has been identified, the situation must be analyzed to determine if that impact is justified by job necessity. In this case, the company was unable to show why clerk/material handlers, conductors and other affected applicants needed to pass the tests in order to perform the jobs. None of the jobs in question requires any particular strength, endurance or aerobic capacity.
These physical tests turned out to be unnecessary burdens on female applicants with no underlying job-based purpose. If there had been a job-related goal for the tests, the company would still have needed to show that there was no way to achieve that goal that would have placed less of a burden on female applicants. Even if a clerk/material handler did require a certain degree of strength, for example, the company would still have to tailor any strength tests to the actual requirements of the job.
The EEOC filed suit against the company, which agreed to settle the case before any court rulings had been made. It agreed to pay $3.2 million into a 20-state settlement fund benefiting women who were denied jobs due to the testing.
CSXT also signed a consent decree which requires it to refrain from requiring these physical tests and to hire independent consultants to develop any necessary employment tests for the company based on scientific studies.
If you have been denied a job or promotion because you failed a test that seemed to have nothing to do with the performance of the actual job, you may have been the victim of disparate impact discrimination. You may wish to explore your situation with an employment law attorney.