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Navigating Complex Issues of Employment Negligence (Part III)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material written for APUS classes. This is the third article in a seven-part series on the particulars of employment negligence law and smart employer strategies for avoiding unnecessary workplace liability.

In the first part of this article series, we reviewed the basic definition and components of employment negligence. In the second part, we looked at ways in which employers can and cannot screen potential job applicants based on historical information, including crime and credit checks. Now, we will examine screening tools for current circumstances which may legally be used for identifying the best job candidates, including physical fitness and ability tests.

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Differences between Physical Ability Tests and Physical Fitness Tests for Employment

Generally, physical tests are permissible for the purposes of screening job applicants. However, as with every testing tool, such tests should be narrowly tailored to the requirements of the job for which an applicant is applying. Physical ability tests and physical fitness tests are often discussed interchangeably in conversation, but these are in fact two different types of tests.

Physical ability tests evaluate a candidate’s ability to perform a specific physical task. For example, if a job requires a candidate to lift 40-pound boxes, then the physical ability test should measure an applicant’s ability to lift such boxes. The test should not require an applicant to lift anything heavier; again, the key is narrow tailoring to the requirements of the position.

Physical fitness tests, on the other hand, are tests that evaluate overall health and wellness. Generally speaking, health and wellness are relative, subjective, and difficult to establish as prerequisites for a given job.

Again, if the job requires specific physical tasks, then the evaluation should test applicants on those tasks and nothing else. For example, if the candidate in question can lift the 40-pound box, then metrics such as the candidate’s heart rate, blood pressure and cholesterol levels while lifting the box are probably not relevant to the employer. Using these metrics as grounds for exclusion risks liability for discrimination.

Propriety of Physical Tests Depends on Whether or Not They Could Be Considered a Medical Examination

A key question in determining the propriety of physical tests is whether they are legally considered a “medical examination.” Under the Americans with Disabilities Act (ADA), a medical examination is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”

According to the Equal Employment Opportunity Commission’s enforcement guidance, medical examinations may only be required after an employment offer has been made. This practice serves to deter discrimination on the basis of ability prior to hiring and to maintain the confidentiality of any disabilities that may be protected under the ADA (which I discussed in a separate article series on employment discrimination). However, an employer may require physical tests prior to a job offer, provided that such tests do not rise to the level of a medical examination.

Another example might serve to clarify this subject. Suppose that an employer wants to administer a strength test to evaluate the fitness of candidates for a job. Provided that the job in question requires the strength being tested, then this test is probably justifiable.

However, a sausage manufacturer learned a $3.3 million lesson for requiring a lifting test for factory jobs that did not entail lifting. An appeals court upheld a lower court’s decision that a pre-employment “strength test” discriminated against female applicants for jobs.

It is worth noting that the same standards of test propriety apply to government mandates as well. For example, law enforcement recruiting commonly requires physical ability and fitness testing. But these agencies are still required to justify their hiring standards in light of the demands of the jobs for which they are utilized.

In another example, state and federal departments of transportation often require periodic medical examinations for all drivers of commercial vehicles. These types of tests have generally been upheld due to the job requirements and the high risk to human life involved with transportation work.

Employers should ensure that any physical testing is directly related to the specific job requirements and that such testing does not violate the law. Where it is apparent that the physical demands of a job might result in discrimination against protected classes — such as gender, age, or disability — employers should carefully consider reasonable accommodations that would resolve concerns over ability before such applicants are excluded.

In the next part of this article series, we’ll look at more tools that employers may use in hiring, including cognitive tests, integrity tests and personality tests.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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