Dive Brief:
- Wal-Mart has agreed to pay $20 million and to stop using a physical abilities test at its grocery distribution centers that was alleged to have had a disparate impact on women seeking jobs as order fillers (U.S. Equal Employment Opportunity Commission v. Walmart, Inc., No. 6:20-cv-00163 (E.D. Ky. Aug. 3, 2020)).
- The lawsuit, brought by the U.S. Equal Employment Opportunity Commission (EEOC), involved women who applied for jobs at the grocery distribution centers in recent months but were screened out with the physical abilities test. The agency alleged the test was not job-related for the position in question and consistent with business necessity and had a disparate impact on women.
- Walmart denied the allegations, according to the consent decree and agreed not to use any physical abilities test for five years.
Dive Insight:
Employers are generally free to require that employees meet certain physical qualifications, if those standards are job-related and consistent with business necessary, EEOC says. However, if a different test would be just as effective at evaluating an applicant but have less of an adverse impact on protected groups, employers must adopt the alternative test.
Other employers' physical ability tests have drawn EEOC's attention in recent years, too. CSX Transportation, Inc. agreed to pay $3.2 million in 2018 to settle an EEOC suit alleging that the company's physical tests had an adverse impact on female workers and job applicants. EEOC said that since at least 2008, CSX used physical tests for current and potential employees in several job categories, including upper body strength tests, cardio testing and an isokinetic strength test to measure aspects of upper and lower body muscular strength.
Notably, the commission also has warned that if an employer retains a third-party to conduct tests, the employer is still responsible for ensuring that the screenings comply with federal law.
