When 926 qualified women apply for entry-level warehouse laborer jobs and only six are hired, suspicion will develop. In the case of Gordon Food Service, Inc., a federal food service contractor located in Michigan, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) took notice and action.

An investigation by the OFCCP, announced May 11, 2016, found that between January 2010 and September 2012, women were “systematically eliminated” from the hiring process for jobs at warehouses in Brighton and Grand Rapids, Mich., Kenosha, Wis. and Shepherdsville, Ky.,  due in part to the use of an unlawful pre-hire strength test. During the period of the investigation, nearly 300 men were hired.

The resolution of this discriminatory matter includes three conciliation agreements entered into by GFS. In them, the OFCCP’s adverse impact analysis violation statements included:

“GFS (East and Central) used a selection procedure which had an adverse impact on the hiring of females without validating the procedure in accordance with UGESP (Uniform Guidelines on Employee Selection Procedures). Specifically, GFS did not complete a validation study of the [test].”

To remedy this violation, the conciliation agreement states that GFS has agreed immediately to cease using the test as a part of its selection process for laborers until the test has been validated in accordance with UGESP.

Isokinetic Testing Not Valid for Pre-Employment.  The GFS pre-offer strength test, found by the OFCCP not to have been properly validated, involved isokinetic machine-based testing where the applicant is strapped into a machine in a seated position while pushing and pulling with arms, legs and trunk.  Proponents of this type of testing claim that it determines whether the applicant has the capability to handle the physical demands of the job. In the case of GFS, not only did this test create an unjustified adverse impact, but the OFCCP found that it was poorly correlated to work-related function. Additionally, since the testing is administered pre-offer, it raises serious safety issues for the applicants being tested: heart rate and blood pressure cannot be monitored before or during testing. In addition, the evaluator cannot ask about previous injuries that might make taking the test unsafe. Measuring these physiological parameters and asking these questions before a conditional offer of employment is tendered constitutes an unlawful medical examination under Equal Employment Opportunity Commission (EEOC) regulations.

Isolated Strength Measures - Not the Whole Picture.  How does having job applicants push a certain amount of weight with their arms, legs and trunk in a seated position translate into the ability to safely perform an essential function of a physically demanding job – most of which does not occur while the applicant is sitting down? True functional job activities require much more than just strength – flexibility, balance and coordination – to name only a few. Most job-related function in medium to heavy level work occurs while the applicant is standing, walking, kneeling, squatting or bending. Given the complexity of work-related function, the likelihood of a testing process – that focuses solely on isolated strength testing of a few muscles, in a non-functional position – being valid is slim to none, and the OFCCP figured that out.

Patricia A. Shiu, director of the OFCCP, said of the GFS situation, “Too often we find ‘tests’ like the one used in this case exclude workers from jobs that they can in fact perform.”

Throwing the baby out with the bathwater. The good news is that invalid testing has been identified and discredited. The danger is that all pre-hire testing is lumped into the same basket as the isokinetic machine-based approach. It can be easy for those outside the field to hear the news of the GFS investigation and decide that all Physical Abilities Testing (PAT) is an open invitation to an investigation or a lawsuit. But all pre-hire physical abilities testing shouldn’t be painted with the same brush. There are real and important differences.

Defensible Pre-Hire Physical Abilities Testing. Regardless of the kind of testing used, the key guiding principle remains the same: the test must capture and recreate the essential physical requirements of the job and its validity must be clearly established. That is, an applicant who passes the test can safely do the job while someone who fails objectively cannot. Legal defensibility has five major components.   

1. Legal defensibility of PAT begins with using a test that is evidence-based, founded on published research and subjected to the rigors of the peer-review process. Test development research at the University of Alabama at Birmingham clearly showed that in order to be objective and accurate, the PAT process requires a scoring system. The scoring system directs evaluators to observe job-specific changes in body alignment and movement during a task, and also specifies how these changes should be rated and weighted once they are apparent.
2. Defensibility of job-specific PAT is further defined by documenting the physical job requirements established through careful job demands analysis – a process that establishes not only the weights and forces but also duration of activities, repetitions, distances and frequencies.
3. The third step in the process is to customize the standardized testing to closely match functional job demands.
4. A fourth important step is to conduct incumbent employee testing - those who currently are performing the job should take and pass the same test that the new applicants will take.
5. And finally, all applicants to whom a conditional offer is made, must be treated the same - regardless of age, race, ethnicity, gender or disability. Therefore, even the best test can be discriminatory if not administered consistently. A carefully written procedure manual, thorough training of evaluators to administer the test according to protocol and quality assurance are all essential for consistent test administration.

The ErgoScience approach to pre-hire Physical Abilities Testing is objective, provides accurate and reliable results through a patented scoring system, and helps employers prevent injuries by hiring only those applicants who have demonstrated they possess the ability to meet the physical demands of the job for which they have applied.

With a recent study showing that employees on the job less than one month are three times more likely to be injured as those in the same position for a year, knowing that the person you are about to hire can safely do the job could not be more important. Our EEOC, ADA and OFCCP-compliant tests are built specifically for our clients and the jobs at hand. Validated and job-related pre-hire Physical Abilities Testing consistently leads to hiring the right people into the right jobs.