Is CSX’s Physical Ability Testing Biased Against Female Workers?

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By Patrick Dorrian

Three types of physical abilities tests used by CSX Transportation to screen job applicants for 38 or more job types deprive women of equal employment opportunities, the federal government alleges in a new nationwide class lawsuit.

The lawsuit raises questions about the sort of physical abilities tests (PATs) employers may permissibly use during the hiring process. The Equal Employment Opportunity Commission, which brought the lawsuit against CSX, has long held the view that such testing is unlawful if it has a disparate impact based on sex—or race, color, religion, or national origin. Eliminating barriers in recruitment and hiring is an EEOC strategic enforcement priority.

In its lawsuit against CSX, the EEOC asserts that the railroad’s isokinetic strength, arm ergometer, and three-minute-step tests all disqualify women at a higher rate than men who take the tests. Both internal and external candidates must pass the tests to obtain a wide variety of CSX jobs, including conductor/freight conductor, track worker, and painter ( EEOC v. CSX Transp., Inc. , S.D. W.Va., No. 3:17-cv-03731, complaint filed 8/1/17 ).

The first two tests gauge applicants’ strength and the third tests their aerobic capacity, according to the agency’s court complaint, which was filed Aug. 1 in federal court in West Virginia. The EEOC filed the lawsuit on behalf of Amanda Hutchinson, who filed a sex discrimination charge with the agency after being denied a job at CSX’s Huntington, W.Va., facility.

The agency also sued on behalf of a class of similarly aggrieved female workers throughout the U.S. CSX uses the discriminatory testing not just at the Huntington facility but at all of its operations nationwide, the EEOC alleged. CSX has been engaging in the illegal testing since at January 2008, according to the EEOC.

“The EEOC has prioritized enforcement actions to eliminate discriminatory barriers to the employment of women and other workers,” Debra M. Lawrence, the regional attorney for the agency’s Philadelphia District, said in an Aug. 2 statement. “Therefore, employers should carefully examine their employment practices, such as tests and other selection procedures, to make certain that those practices are not causing an unlawful disparate impact because of sex or another covered demographic category.”

“The EEOC will take vigorous action if an employer’s selection procedure has an adverse impact on women or members of any other demographic group,” EEOC District Director Spencer H. Lewis Jr. added. “Companies must refrain from using a test causing adverse impact unless it is job-related and consistent with business necessity. Even if a test passes that standard, an employer must adopt any comparably effective alternative practices that have less adverse impact,” Lewis said.

CSX didn’t respond Aug. 2 to Bloomberg BNA’s requests for comment.

Testing Stats Show Bias, EEOC Says

The existence of a disparate impact based on sex (or another protected trait) resulting from a PAT (or another selection procedure or employment policy) is typically identified by a statistical analysis, the EEOC says in its guidance on the issue. An examination of CSX’s testing data reveals the presence of sex bias, the agency charges.

CSX’s isokinetic strength test measures a job candidate’s upper and lower body muscular strength for up to 38 job titles, according to the EEOC. The company has two passing scores for the test, “heavy” for some jobs and “medium-heavy” for other jobs, the agency says. Male candidates, the agency alleges, have achieved the “heavy” passing rate roughly 87 percent of the time compared with just 30 percent for women, based on testing results for more than 13,000 candidates. For the “medium-heavy” threshold, the pass rates were 94 percent for men and 47 percent for women, the agency says.

A similar disparate impact is shown 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 asserts. Both tests are used by CSX for hiring for 12 job titles, the agency says. 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.

The agency seeks a permanent injunction barring CSX from using the tests or any employment testing that may have a similar disparate impact on female job candidates. It also seeks to recover money damages for Hutchinson and the other proposed class members.

EEOC attorneys in Charleston, W.Va., Baltimore, Philadelphia, and Pittsburgh represent the commission. No attorney had filed an appearance yet for CSX.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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