Discriminatory Strength Test Can Cost Millions?

the situation

In an effort to minimize the chance of work-related injuries, you have applicants for physically demanding positions undergo a strength and agility test. Your workforce ends up being significantly male. Should you be concerned about being hit with claims of discrimination?

the ruling

Maybe so—and not just from applicants who are not hired. Gordon Food Services, a large federal food service contractor, recently settled charges of gender-based hiring discrimination with the Department of Labor’s Office of Federal Contract Compliance Programs under a similar scenario, agreeing to pay $1.8 million in back wages as a part of the settlement. The settlement does not stem from claims raised by women who were not hired, but instead, the issue came to light during the OFCCP’s routine evaluation of the company’s required affirmative action plan. The investigators noticed that far fewer women were hired than men.

The investigators determined that the company systemically eliminated qualified women from the hiring process through a number of discriminatory means, including using an unlawful strength and agility test. During the investigation period, only six women were hired for labor positions compared to almost 300 men.

The $1.8 million settlement figure to be paid by Gordon Food Services will be distributed among female applicants. Gordon Food Services has also agreed to hire 37 female applicants and to discontinue its use of the strength test.

the point

Understandably, employers want to make sure they hire employees that are fit to perform the work needed. However, employers also need to be careful when qualifying tests end up eliminating a large pool of applicants in a particular class.