To ensure workplace safety, the company required all employees operating equipment such as forklifts and bulldozers to take a medical exam every three years. The exam included tests for hearing, vision, heart problems and reflexes.

There were no medical conditions that automatically disqualified employees from the job. Rather, in questionable cases, the results were sent to a physician for an opinion on whether the employee could perform his job safely.

A long-time worker had passed the exam several times — then one year, he refused to take it. The company reassigned him to a job that didn’t require the medical certification.

He sued, claiming the testing requirement violated the ADA. But the court ruled in favor of the company.

The employer was simply trying to provide a safe workplace — and periodic testing was an appropriate way to achieve that goal. As the court noted, the company couldn’t be expected to wait until there was an accident to learn an employee couldn’t perform the job.

Moreover, everything included in the test had a bearing on the individual’s ability to stay safe. And employees weren’t disqualified automatically based on certain medical conditions — they were all assessed individually based on the opinion of a doctor.

Cite: Wice v. General Motors Corp.

In one recent case, a supervisor caught an African-American employee setting off firecrackers at a job site. The supervisor notified upper management, and the employee was fired for a blatant violation of their safety policy.

Seems like a pretty simple case, right? Wrong.

The employee sued for discrimination. Two white employees were caught doing the same thing and weren’t reported by the supervisor.

The company’s defense: The decision-makers were never aware of the other safety violations. The employee was fired based on his manager’s report. If the company knew about the other employees’ conduct, they would’ve been fired, too.

But that didn’t matter to the judge. The front-line manager discriminated against the employee by taking action against him and not his white co-workers. Therefore, the company was liable.

Cite: Madden v. Chattanooga City Wide Service Dept.

Many HR departments use pre-employment tests to find out which applicants are the best fit for the job and the company. But is that putting them at greater risk for a new type of lawsuit?

The latest challenge for employers: Avoiding tests that may unintentionally discriminate against a protected class.

Companies have gone to court because of tests that had a “disparate impact” on certain groups — even though the tests weren’t designed to discriminate.

For example, a jury last month awarded 23 firefighters in Akron, OH, $2 million after they were denied promotions because of test scores.

The plaintiffs claimed the test put white applicants and those over 40 years old at an unfair disadvantage. The highest scores — and therefore, the promotions — were disproportionately received by African-American applicants.

Also, they claimed, many of the test questions were unrelated to the position.

The jury ruled that even though the bias was unintentional, the results of the test were skewed in favor of African-Americans.

Avoiding bias claims

What can employers do to make sure they’re hiring the best applicants without being accused of bias? The EEOC offers this advice for pre-employment testing:

1. Keep the tests up-to-date — Technology is changing the way many jobs are done, and some skills are no longer necessary. The tests must be changed as the jobs do.
2. Don’t always use the same tests for different jobs — Jobs may be similar but not exactly the same. If the necessary skill sets are different, different tests should be used.
3. Beware of education requirements — Many companies require a high school diploma for a lot of positions. But lawyers warn against the practice, saying it might be hard to prove a diploma’s necessary for some menial jobs.
   
4. Don’t put blind faith in a purchased test — When buying pre-made tests, it’s important to get documentation that the test has been validated. But, the EEOC says, companies are still on the hook for making sure those tests don’t create a disparate impact when they’re used.
5. Track statistics — To avoid a disparate impact, companies can keep track of the effect a test has on different applicant groups. Some companies hire consultants to have selection procedures professionally validated.

Also, the EEOC says, even tests that show a disparate impact will be legal as long as they’re “job-related and consistent with business necessity,” and no non-discriminatory alternative is available.

Cite: Howe v. City of Akron

Here’s what happened in one recent case:

To reduce on-the-job injuries, one company started a new testing procedure for job applicants. The jobs involved some heavy lifting, so candidates were asked to carry 35-pound weights and load them onto a frame.

Applicants had to perform as many lifts as they could within seven minutes while the hiring manager observed. The candidates’ performance was a major factor in the company’s hiring decisions.

Several female applicants sued, claiming the test unfairly kept women from being hired. Before the testing was used, women made up 46% of all relevant positions — afterward, only 15% of those employees were women.

The company argued that the procedure was necessary in finding out who could do the job.

The court disagreed. On the job, employees did an average of 1.5 lifts per minute with a break after each lift — but during the test, applicants averaged six per minute without any breaks. The test was significantly more difficult than the actual job, so the company couldn’t prove it was necessary.

The case went before a jury, and the female applicants were awarded over $3 million.

Bottom line: Any test given to job applicants — whether it’s physical or written — should be in line with the actual demands of the position. That way, the company will be able to prove the test is a business necessity and fight charges that it has a negative impact on certain groups.

Cite: EEOC v. Dial Corp.

They can, if they reveal enough information about candidates’ mental states.

In one court case, three rejected job applicants sued after they failed a pre-employment personality test given by the employer.

The company gave the tests to determine whether applicants had the right personality traits for the job.

The problem: The test was similar to those used by psychologists to determine if patients suffer from mental disorders such as depression, hysteria and paranoia. For example, applicants were asked if they:

• hear voices without knowing where they are coming from
• have fits of laughing and crying that they cannot control, and
• have a habit of counting things that are not important.

Therefore, the applicants claimed, the test was a medical examination, and the company violated the Americans with Disabilities Act by giving applicants a medical exam before they were offered jobs.

The company argued that the test wasn’t a medical exam because it wasn’t interpreted by a doctor.

But the court disagreed. Since the test revealed symptoms of personality disorders, it was considered a medical examination under the ADA, and using it before jobs were offered was a violation of the law.

Cite: Karraker v. Rent-a-Center, Inc.

The key is distinguishing between personality tests and medical examinations that can be used to diagnose psychological disorders.

How can companies tell the difference? The EEOC says tests may be illegal if they are:

• administered by a healthcare professional
• interpreted by a healthcare professional
• designed to reveal a physical or mental impairment
• detailed enough to be considered “invasive”
• designed to measure an applicant’s “psychological response to performing a task” (rather than “an ability to perform the task”)
• normally given in a medical setting, and
• administered using medical equipment.

Normally, courts will look at a combination of those factors before ruling against a company — but sometimes one is enough.

For example, in this case the company lost because it used a test that was normally administered in a medical setting — even though the results weren’t interpreted by medical professionals.

Because of the danger of those types of lawsuits, its important for employers to:

• examine what information their testing may uncover
• make sure the tests are job-related and reveal traits relevant to the specific positions they’re used for, and
• only use tests that have been validated as ADA-compliant.

That question was asked in one recent court case. Here’s what happened:

An employee was sexually assaulted by her newly hired co-worker. The attacker had no criminal record, but during the investigation, it turned out that he’d been fired from his last job after groping a female employee.

The victim sued for “negligent hiring,” claiming the company should have known his history and never offered him a job.

On the other hand, the company argued it had thoroughly investigated his background and found nothing that would indicate he shouldn’t have been hired.

Background checks were clean

Who won the case?

Answer: The company.

The judge ruled in favor of the employer for two reasons:

• The criminal record check found nothing, and
• Reference checks were positive – the attacker’s previous employer failed to warn the company about any possible threat — in fact, his immediate supervisor gave him a glowing reference. And when asked why he left the company, the previous employer just said it was because he had a “dispute with a co-worker.”

Negligent hiring claim fails

HR did its job investigating the new hire’s background. There’s no way the company could’ve predicted the assault.

In negligent hiring cases, companies are only on the hook when they fail to perform a check — or see the warning signs and ignore them.

Cite: Groom v. Fresenius Medical Care North America, Inc.

In many cases, yes, according to the Equal Employment Opportunity Commission.

The most recent case involves a suit brought by the EEOC against the Salvation Army regarding its language policy.

Two Spanish-speaking employees were fired for failing to speak English on the job and failing to learn language during their employment.

The Salvation Army’s handbook lists “Fluency in English; written and spoken” as a qualification for employment. Also, employees were required to speak English while they were at work.

Last week, the EEOC agreed to settle the case if those rules were changed.

The new policy requires “an ability to speak and understand English in a manner that is sufficient for effective communication with supervisors, employees, beneficiaries and customers, based on the assumption that such individuals can only speak and understand English.”

In other words: Requiring fluency in one language is discriminatory. Hiring employees with the ability communicate with customers, bosses and each other isn’t.

Many companies run into trouble with the Americans with Disabilities Act when they ask job applicants and new employees for medical information. Here are six keys to staying out of court:

• Give the tests to all new hires for similarly situated positions
• Only ask for a physical after a job offer has been made
• In your written offers, mention they are contingent on successful completion of a medical exam
• Make sure the results are confidential
• Only test to make sure the employees can perform the essential functions of the job, and
• Put those requirements in your job description so applicants are aware of them beforehand.

In one recent case, a woman came to interview for a job that required some heavy lifting. The hiring manager told her the position was a “man’s job” because of the physical labor involved.

She was turned down in favor of a male applicant. The woman sued for sex discrimination.

The company tried to get the case thrown out, arguing that she wasn’t hired because she didn’t meet the job’s education requirements — however, it had previously hired several people without the “required” education for similar positions.

Therefore, the court decided the interviewer’s comments were enough evidence of gender bias. The company lost the case.

Cite: Sims v. Coosa County Board of Education