Was fitness/safety test discriminatory?
April 19, 2010 by Fred HosierPosted in: Injuries, Special Report, Transportation safety, What do you think?
A company required a female employee to take a physical strength test before returning to work after an injury. Was it a valid test of the employee’s ability to perform her job safely, or was it gender discrimination?
Deborah Merritt was a long-distance truck driver for Old Dominion Freight Line, which required her to be away from her family on some nights and weekends.
When positions for local pickup and delivery drivers opened at Old Dominion, she’d apply so she could have more time with her family.
The pickup and delivery drivers often had more physical tasks to perform, because they had to help with loading and unloading of cargo.
She was passed over more than once for less experienced male drivers.
Eventually, Merritt did get a pickup and delivery position. All indications were that she was doing a good job.
Then she injured her ankle. After a recovery period, she told Old Dominion she was ready to come back to work.
Her doctor OK’d her return to work with no restrictions. The day after her doctor’s appointment, Old Dominion required her to take physical ability test (PAT) before returning to work.
Old Dominion said Merritt failed portions of the test. No part of the test was designed to test whether an ankle injury would hinder an employee’s ability to do the job of a pickup and delivery driver.
Merritt was fired.
She filed a lawsuit alleging sex discrimination.
Merritt also presented evidence of discriminatory attitudes toward women at the company.
Employment records seemed to back that up. Old Dominion employed about 3,100 pickup and delivery drivers. Only six were women.
Old Dominion argued that the PAT was standard procedure before a driver could return to work after an injury.
However, the company couldn’t produce the PAT policy in writing. And Merritt’s lawyer presented evidence that the policy wasn’t always used.
That was enough for the judges. They denied Old Dominion’s motion to throw out the case. The court said it should go to a jury trial. Now the company must risk arguing its case in front of a jury, or it could choose to settle out of court which still might be expensive.
Bad news for employers using physical ability tests to make sure workers can do their jobs safely? Not at all.
In fact, the judges, in their opinion, wrote that PAT policies are reasonable. The problem in this case is that the company didn’t require them all the time, which, combined with other allegations, appeared to amount to a case of gender discrimination. The lack of a written policy also hurt.
And the test didn’t address the employee’s specific injury. In similar cases, courts have examined whether PATs reflect the real work to be done by employees or applicants.
What do you think about the judge’s decision? You can let us know in the Comments Box below.
Cite: Merritt v. Old Dominion, U.S. Court of Appeals 4th Circuit, No. 09-1498, 4/9/10. The entire opinion is available here (PDF).
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Tags: ankle injury, gender discrimination, physical ability test, return to work, truck driver
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April 19th, 2010 at 8:00 am
[...] more: Was fitness/safety test discriminatory? | SafetyNewsAlert.com … Posted in industrial safety | Tags: female-employee, occupational, physical-strength, safety, [...]
April 19th, 2010 at 9:59 am
Yes, I agree with the court’s decision. If this company wants to have physical ability tests, then they need to enforce them each and every time and they should definitely have a written policy! It just seems fishy when they pick and choose when to employ the ability tests…
Jenn
http://blog.roymatheson.com
April 20th, 2010 at 7:20 am
I agree with the decision also. It would have been pretty simple for the company to have operated within the bounds of legality simply by having a policy and following it. Bet they do now.
April 20th, 2010 at 7:49 am
The issues with any test are reliability and consistency. The test should measure what it is supposed to measure (reliability), in this case, the person’s ability to do the work. The test should also be applied consistently, which would best be done through a written policy and procedure. It is a good idea to test employees to assure that they are physically able to perform the job, but the tests should never be used to exclude specific employees based on age or gender. It sounds like the company had the right idea, but applied it in the wrong way.
April 20th, 2010 at 8:35 am
Well, I do agree with the PAT and i do believe the company has let itself open for a lawsuit. It is also apparent this company may be discriminating to women. But, I work in a welding shop, we have in our policy if we feel that their work may become hindered we can have employees tested.
We have employed women welders over the years, but none stay long the work is heavy and hot.
I would say the company has shown a track record of not hiring women and the PAT test should be given to anyone returning to work and have it in the employee manual.
As in this case, I would tend to agree with the judge, there is sufficient proof to move this to trial. Though as in Safety/News alert articles we may not have all the information.
April 20th, 2010 at 8:36 am
Hmmm the key thing in this is “No part of the test was designed to test whether an ankle injury would hinder an employee’s ability to do the job of a pickup and delivery driver.” If she was not able to do the PAT to a satisfactory rating then why was she hired if the test did not measure ankle effectiveness. This company’s crappy attitude toward women got them what they deserved.
April 20th, 2010 at 8:51 am
Outside of my opinions on gender this and gender that; the courts ruling was in my opinion “right on”!
Any/all companies need to enforce policies that are in writting and make sure they are documented and fair!
What especially needs to be done is make sure the people having to utilize these policies are doing it correctly.
April 20th, 2010 at 9:09 am
I agree with the court’s decision. The company should have been more aware with the rules and regulations surrounding P.A.Ts. The company should also have a Return To Work policy, which in most cases includes the outline of a P.A.T. as part of the policy. There are so many rules and regulations and depending on the state you are based in or travelling these rules and regulations may vary. It’s tricky business and it’s always changing. You need a dedicated team within a company to try and keep up on the regs. Also having a strong relationship with your insurance agency and broker could be a plus because they could also provide valid information for policies and procedures. (However a good insurance company is hard to fine for a transportation company). Most importantly whenever policies and procedures have been placed, they need to be enforced within a company starting by the acceptance and support from upper management right on down to every supervisor, which is much easier said than done. Unfortunately most companys make changes after something like this occurs.
April 20th, 2010 at 9:57 am
I also agree with the Court’s decision. PAT’s are en excellent method to protect employees, employers and the public, especially in the case of transportation employees. The key here is that the PAT is applicable to the “job” and administered consistently. A written policy is a MUST!! so that everyone is “on the same page” and the only “issue” being examined is employee’s ability to do the work effectively and without injury.
April 20th, 2010 at 11:02 am
I agree with the administration of the PAT, but this should be written policy and all of the drivers should have to take it. When they first qualify for the job, and in this case upon return to work. If the company didn’t even bother to check on the injured ankle, sounds a lot like discrimination to me.
April 20th, 2010 at 11:28 am
What a shame, in the year 2010 we are still seeing cases of obvious discrimination. I think the judgment so far was right on and I hope Old Diminion has learns a Big lesson.
April 20th, 2010 at 12:29 pm
This never would have happened if they hadn’t hired a broad to do a mans job.
April 20th, 2010 at 1:00 pm
Sam,
You just started a gender war in the chat. Good luck at defense.
April 20th, 2010 at 1:34 pm
I can not believe that a company that size could be so foolish to even go there. There arrogance is there stupidy. To a jury it is going to look even worse. This is going to cost them big time!!!
April 20th, 2010 at 2:09 pm
If a company wants to use a Physical Ability Test (PAT) to screen potential candidates, that is just fine so long as it is a WRITTEN policy and that everyone is NOTIFIED that it is a REQUIREMENT of the job. Most people trying out for a position which requires a lot of physical activity, would be amenable to a PAT. They would then know themselves they are qualified to do the job, and the company would also know they are qualified.
If a PAT is used on injured personnel to see if their injury hampers their ability to perform the duties of the job, the PAT results AFTER injury MUST be compared to the PAT results PRE-injury. Then and only then can the company use the PAT as a means to oust and otherwise productive and good quality employee. It is the arbitrary and capricious nature of how these kind of tests are applied, that causes the company in question to suffer the consequences of their actions.
If a PAT is given to ONLY women, then that in and of itself is discriminatory even if the women are always small in stature. Companies need to use their heads more often, to avoid lawsuits such as this one. I hope the lady wins, although it is not a guaranteed thing whenever you have to get a court to rule in your favor - even in civil court!
April 20th, 2010 at 2:10 pm
Sam - why on earth would you choose to say something as sexist, prejudicial and downright mean as that? It will not help you, nor the case in question one iota.
April 20th, 2010 at 3:19 pm
Old Dominion is going down! The scenario didn’t explain if she had been tested before the long haul routes and when she switched to local delivery position. If she was only tested haphazardly when returning from her injury, that will be another defense point in her behalf.
Along with a PAT written policy, it should also be a policy or part of the PAT policy to give the treating physician a copy of the job description and ask if the employee can complete all the functions of the job before returning to work after an on-the-job injury. There are a lot of good doctors who do not know how or won’t perform functional capacity testing. That is where the PAT program comes in with an established doctor or clinic. The PAT should always be performed to a uniform standard and professionally administered in the same way to everyone, unless you can define certain injuries that do not impede any of the lifting required. Weight on an ankle can irritate the ankle. And for a proper sound ADA policy every job should have the physical requirements defined and written as a part of the job description.
April 20th, 2010 at 8:12 pm
I mostly agree with the decision. I agree that it should go to trial, and I agree that the company could have been covered if they had procedures and followed them. However, if her lawsuit is strictly sexual discrimination, I’m not sure I’d be convinced with the information given. It sounds to me that she was discriminated against for filing a claim, not because of her gender necessarily. I think there is probably a lot more that we aren’t getting here. Was it common knowledge that she wanted the local route to be closer to her family, thus a suspicion about her ankle injury? As for being passed up, job performance may easily play a factor. Just because some have tenure, does not make them more qualified or deserving.
Again, I do think the company is in the wrong for not being consistent with it’s policies (or not having them at all), but there’s definitely more to this story.
April 21st, 2010 at 9:31 am
Agree with decision - slam dunk if it goes to a jury. Where was HR in this process?? Anybody home?
April 21st, 2010 at 12:36 pm
“Eventually, Merritt did get a pickup and delivery position. All indications were that she was doing a good job.”
This is quoted from the article so her performance was not an issue according to indications. So what’s the problem. Simple - she was discriminated against.
April 22nd, 2010 at 11:37 am
The application of the PAT in this case reminds me of “employee evaluations” given one year at a company I used to work for. Written evaluations had never been before or after that year-and their use in this circumstaonly nce was to document “performance” of a long-time employee the president of the company decided he wanted gone. This employee was clearly targeted, and sure enough, within 3 months, she’d been fired.
April 22nd, 2010 at 12:28 pm
Nancy sorry about that. Even a good evaluation systems has a system of measure to rehabilitate a worker. It should identify duties, rate performance of duties, and give corrective action to improve. If no improvement is made then I can see reason for termination but then again it should be applied to all not just one person.
April 28th, 2010 at 11:06 am
Thank you Sam! It’s statements like yours that makes us women just work that much harder/better to prove you wrong with the end result being we take your job.
April 28th, 2010 at 11:18 am
Get him KAT! Get him! LOL here’s a tazer gun just for you. Have fun. If you aim it at the forehead, it helps scramble the brain and aligns it with gender neutral outlooks on life
ZAP ZAP ZAP