Some jobs obviously require that the employees who perform them be in excellent physical condition. For example, firefighters and others engaged in heavy physical work may have to be extremely physically fit.
It’s legitimate for employers to test those physical abilities on a regular basis to ensure everyone meets reasonable minimum standards.
Be careful, though, about how you administer those tests to men and women. As the following case shows, subjecting a woman to additional or repeated testing may be sex discrimination.
Recent case: Lisa Starkey worked for the city of Burnsville as a paramedic/firefighter when she was diagnosed with multiple sclerosis. After treatment, her doctor released her to return to work. Then she had a series of mishaps and minor accidents that supervisors worried were related to her multiple sclerosis.
Starkey then began a round of fitness-for-duty testing, which she ultimately failed. The tests she had to pass were different from those the department typically used, and passing those particular tests wasn’t a regular condition of employment.
She sued, alleging that male paramedics and firefighters weren’t subjected to as much testing after their doctors cleared them for work as she had experienced. In fact, no other male firefighter had ever been tested after his physician cleared him for work.
The court agreed that a jury should decide whether this disparity was sex discrimination. (Starkey v. City of Burnsville, No. 07-1948, DC MN, 2008)
Advice: Make sure you carry out any testing evenhandedly. If an employee passes a test that your organization says all employees holding the same job must pass, then drop the matter. Additional testing looks very much like discrimination.
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