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.
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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).
