Did Swift Transportation Throw the Baby Out with the Bathwater?

[fa icon="calendar'] Oct 8, 2015 8:00:00 AM / by Deborah Lechner

When the nation's fifth largest truckload carrier’s quarterly results fails to meet expectations, people are bound to notice. That's all the more true since long-haul trucking companies are a weather vane and harbinger of future change in the larger economy. A recent online article in the Wall Street Journal cited several reasons for Swift Transportation’s recent financial woes:

  • A customer shift toward long-term contracts that lowered their margins
  • Delayed delivery on new trucks
  • Charges related to accidents and workers' compensation claims
  • Settlement of a gender and age-based discrimination charge filed by the U.S. EEOC

Being as we are in the business of developing and delivering pre-employment Physical Abilities Testing, the last two bullets caught my eye. Reading further, we find out that the EEOC charge involved "one of Swift’s subsidiaries—Central Refrigerated Transport, which Swift acquired in 2013." Apparently the charge arose from a "physical strength exam that the company administered to drivers and that discriminated unfairly against women." The article goes on to say that although the EEOC did not disclose the dollar amount of the settlement, Swift reported that the settlement and related items "were expected to shave 2 cents off of the company's third quarter earnings per share." With 91 million shares outstanding, that's more than $1.75 million in foregone earnings. Ouch!

So what happened? "What kind of Physical Abilities Testing were they doing, and how did they run afoul of the law?" After all, it's well established that, if properly developed and administered correctly, even those tests that create adverse impact for a protected group are defensible as long as they are testing for the requirements of the job.

A blog posted by Compass Truck Sales provides more detail: "At issue were claims that applicants for truck driver positions at Central Refrigerated Service's Fontana, Calif., facility who were female or over 40 years of age were allegedly adversely affected by a mandatory policy requiring them to take strength exams, which EEOC said were not indicative of the strength level required for the positions." The exams in question were administered by a third-party vendor (an ErgoScience competitor who will remain unnamed – at least by us) no longer used by the company. The EEOC charge alleged that the company's practice discriminated against women and older applicants who were not hired as a result of not having passed the exam.

Central Refrigerated Service arrived at a settlement agreement with the EEOC, even though they didn’t admit liability. Instead, the company says it settled the matter because the third party vendor process had been discarded by the company. Central agreed to an injunction precluding the use of this third party’s "strength exams."

After being acquired by Swift Transportation in 2013, Central Refrigerated Service adopted Swift Transportation’s hiring policies, which do not require any strength or lifting exams. Rosa M. Viramontes, the District Director of EEOC's Los Angeles District Office said in a recent press release: "Physical agility tests for positions that do not require the same level of physical ability can run afoul of federal law.  We commend Central Refrigerated Service for shifting Central's policies to ensure that job applicants have equal access to employment going forward."

So where does all this leave the rest of us – companies like ErgoScience who are performing testing for employers throughout the nation? The thousands of employers who rely on Physical Ability Testing to insure the safety of their workers? The keys to the answer lie in the italicized text above:

  • Physical Abilities Tests must closely reflect the job demands for the target job. And closely  in this case means exactly. If the job requires lifting of 50 lb, you can’t test to 75 lb.  And lifting 50 lb. has to be an essential function. If the job requires lifting to a 45-inch height, you can’t test to 60 inches. If the job requires one repetition, you can’t test 10.
  • You must allow the vendor to do thorough and detailed job analysis upfront so that the screens that are developed match the demands of the job. It may cost a little more, but as you can see from this Central Refrigerated case, it’s well worth the investment.
  • You must continue to work closely with the vendor for the life of your screening program: if the essential physical requirements of the job change in areas that are relevant to the screens, the screens may need to, too.

The bad news for Central Refrigerated, and for Swift Transportation, is that they are now doing nothing. Nothing, that is, to make sure their employees are physically capable of performing the jobs for which they are hired. I personally don’t see this as an improvement – for the company, its shareholders, or its employees. Equal access, yes! But for employees that are truly physically qualified. What good does it do employees to get hired for a job, only to sustain an injury that forever alters their earning potential?

And what good does it do employers to continue to hire employees that aren’t physically capable? Note that one of the factors cited by Swift as contributing to their financial woes was workers' compensation costs. ErgoScience has multiple case studies that show pre-employment Physical Abilities Tests reduce workers' compensation expenses by 50-80% within the first year of testing!

So, to stop conducting screens that did not reflect job demands was definitely the right decision. But to stop conducting screens altogether? That looks to me an awful lot like throwing the baby out with the bathwater.

legal considerations in Physical Abilities Testing

Topics: Pre Employment Screening, Legal Issues

Deborah Lechner

Written by Deborah Lechner

Deborah Lechner, ErgoScience President, combines an extensive research background with 25-plus years of clinical experience. Under her leadership, ErgoScience continues to use the science of work to improve workplace safety, productivity and profitability.