Post-offer Pre-employment Screens: 3.2 Million Reasons to be Cautious
Another Settlement Highlights Importance of Properly Designed and Monitored Pre-Employment Screening 
By Albert S. Lee, Esquire, Tucker Arensberg, P.C.
In June of 2018, CSX Transportation, Inc. ("CSX") agreed to settle - for $3.2 million and a number of non-monetary terms - a sex discrimination lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) arising out of the company’s use of pre-employment physical ability tests. Although CSX denied the allegations and the settlement kept the case from being decided in court, the case is a cautionary tale for employers who rely on such tests (such as IPCS or IPCS Biodex isokinetic strength testing) as part of their hiring process. It highlights the importance of a customized pre-employment screening process and disparate-impact monitoring.
The EEOC's 2017 lawsuit alleged that CSX denied a class of female employees/applicants job opportunities due to their sex by subjecting them to certain screening tests over a long period of time. The three screening tests specifically mentioned in the lawsuit were: (1) isokinetic strength tests (IPCS or IPCS Biodex); (2) a three-minute step test; and (3) an arm ergometer test. These processes were alleged to have had a significant disparate impact on a large pool of female applicants who applied for 38 different positions over a nearly ten-year period.
Under the settlement, CSX agreed to pay $3.2 million into a settlement fund and meet other conditions including:
- Cessation of the use of the isokinetic and three-minute step test within 30 days; and
- Use non-demonstration physical testing for hiring only after following procedures that include statistical, job-relatedness and legal analyses performed by experts/legal counsel.
What were the EEOC’s concerns?
Federal and state anti-discrimination laws limit the type of inquiries an employer can make during the hiring process. As a general rule, pre-employment inquiries and exams must be confined to those needed to determine whether an applicant is qualified for the specific position he or she seeks. In its lawsuit, the EEOC expressed concern that the passage rates for all three tests were higher for males than females and alleged, as a result, that the use of these tests unlawfully denied employment opportunities to a class of aggrieved female candidates/employees.
How is Atlas’s pre-employment screening protocol different?
Like others before it (including the Central Refrigerated case I discussed in a previous article) the CSX case demonstrates the importance of and need for a pre-employment screening process that is tailored to each particular client’s business necessities and mindful of the applicable legal issues. To pass muster, a pre-employment screen protocol should be specifically designed to test a job applicant’s functional ability to safely complete specific tasks of the position in question and such protocols should be re-evaluated if there are any changes to the position’s essential functions. Simply testing for an applicant’s generic strength or physical capabilities will place an employer at risk of legal scrutiny, especially if there is statistical evidence of a disparate impact.
Creating a unique pre-work screen for each position, reviewing a position’s essential functions with management, conducting on-site evaluations to ensure written job descriptions accurately reflect the position’s essential functions, ensuring the position’s essential functions are revalidated over time and monitoring statistical and legal issues all pro-active measures to try to minimize an employer’s legal risks and avoid a class action lawsuit similar to the one faced by CSX.
 The information contained in this article is for the general knowledge of our readers. The article is not designed to be and should not be used as legal advice or the sole source of identifying, resolving or analyzing any type of problem. The law in this area of practice is constantly changing and each fact situation is different. Should you have any specific questions regarding a fact situation, we urge you to consult with legal counsel.
 Albert S. Lee is a management-oriented employment and labor attorney with the Pittsburgh-based law firm of Tucker Arensberg, P.C. Tucker Arensberg, which was founded in 1900, is a business-minded law firm that has been recognized with a First-Tier National Ranking in the U.S. News World Report/Best Lawyers® Best Law Firms edition. Tucker Arensberg’s labor and employment practice group comprises fourteen attorneys who represent a diverse group of clients and their insurers in a broad range of employment issues, including ADA, ADEA, Title VII of the Civil Rights Act, Wage and Hour, FMLA, NLRA/NLRB, non-competition agreements, etc. The group's experience in working with employers of all types - from large multi-national retail companies to family-owned regional manufactures to healthcare organizations to nonprofits - allows them to quickly understand the particular and unique challenges, strengths and circumstances of every case.
 Although there is no publicly available information that details how CSX used the step test, it appears that there were aspects of their approach that raised concerns with the EEOC. It is well-established that the EEOC, which frowns upon general tests of an applicant’s generic strength or physical capabilities, approves of pre-employment testing only when it is specifically designed to test a job applicant’s functional ability to safely complete specific tasks of the position(s) in question. Accordingly, Atlas’ approach that gathers MET data for each job in question, uses well-established algorithms to adjust the step test to match the specific and verified work demand of specific jobs, and validates each protocol with employees currently in the job is a superior approach to one that focuses on general aerobic capacity or cardio-endurance.
 According to the lawsuit, the passage rates for males/females were 87%/30% for the “heavy” isokinetic strength test and 94%/47% for the “medium heavy” isokinetic strength test. For the three-minute step test, the passage rate for males was 87% while the passage rate for females was 63%. The passage rate for males taking the arm ergometer test was 98%, while the passage rate for females was 83%.
 According to the lawsuit, CSX has ceased using the arm ergometer test prior to the filing of the lawsuit.
 The settlement documents specifically defined "non-demonstration physical testing" as "any form of physical strength or endurance (including, but not limited to, abilities, dimensions or concepts known as "muscular strength," "muscular endurance," "explosive strength," "dynamic strength," "static strength," "anaerobic power," and "trunk strength”), aerobic capacity or cardio-endurance, flexibility, or equilibrium testing used to hire job applicants or employees… that does not involve performance of physical tasks that are actually required to be performed as part of the on-the-job duties and responsibilities of [the positions in question] in the manner and under the conditions reasonably comparable to those in which they are actually performed."