Some professions require applicants to prove a certain level of physical fitness. When employers demand passing a physical test as a qualification to be hired, they need to make sure that protected classes such as women don’t fail at rates that indicate the test has a disparate impact on otherwise qualified applicants.
This generally means that women should achieve at least 80% of the passage rate for men.
Recent case: The U.S. Department of Justice sued the commonwealth of Pennsylvania over the physical test used to screen applicants for state trooper positions. For years, men taking the test passed at rates between 97% and 98%. Women had a pass rate between 71% and 72%, This, said the U.S. Attorney General, meant that the agency flunked the disparate impact test, which presumes a test had a disparate impact on a protected class if that class achieves a pass rate of less than 80% of another group.
The state first argued that it couldn’t be sued in disparate impact cases. The federal court hearing the case rejected the claim.
Next, the state argued its test didn’t have a disparate impact on female applicants. The court again sided with the U.S. Attorney General, concluding that the test failed the 80% pass rate rule. The case will now proceed through discovery and to trial unless it is settled or appealed. (United States of America v. Commonwealth of Pennsylvania, No. 1:14-CV-1474, MD PA, 2015)
Final note: Determine if the 80% pass rate rule applies. If a group of applicants passes at a lower rate than that, look at the test itself: Does it really measure necessary qualifications for the position? If not, change the test. Check with your attorney so he or she can advise on how to defend a possible challenge.
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