Workplace Class Action Blog

Class Action Litigation Focused On Pre-Employment Tests

Posted in Class Action Litigation

By Lynn Kappelman

Employers that administer pre-employment physical fitness tests should take notice of Easterling, et al. v. The State of Connecticut Department of Correction, No. 3:08-CV-0826 (D. Conn. May 5, 2011), a recent ruling by Judge Janet C. Hall of the U.S. District Court for the District of Connecticut. The decision analyzes potential defenses when applicants mount a class action claiming that the pre-employment test has a disparate impact on a protected-category group.

In Easterling, the plaintiff sued the DOC when it refused to hire her as a Correction Officer (“CO”) in 2004, because she had failed one aspect of the physical fitness test – a 1.5 mile run.  Easterling brought her case as a class action against the DOC, asserting that the DOC violated Title VII by administering a physical fitness test that caused a disparate impact on the basis of sex, since the run was neither job related nor consistent with business necessity. At the time Easterling applied for a position, the DOC required that each applicant for the CO position pass both a written test and a physical fitness test.  The physical fitness test consisted of four parts, and one part was a timed 1.5 mile run.  Although Easterling passed all of the other portions of the written and physical test, she failed the 1.5 mile run.

On January 4, 2010, Judge Hall certified the case as a class action and subsequently both Easterling and the DOC moved for summary judgment.  In reviewing the dueling summary judgment motions, Judge Hall explained that once a plaintiff has brought a class action claiming disparate impact, an employer may directly attack the plaintiff’s statistical proof by pointing out deficiencies in the data or fallacies in the analysis.  The Court noted that the employer may challenge the plaintiff’s prima facie showing by proving that the employment practice that causes the disparate impact is job related for the position in question and consistent with business necessity.

The DOC unsuccessfully tried to attack plaintiff’s case using both methods.  Easterling offered statistical proof through expert testimony that when the DOC administered the 1.5 mile runs for CO applicants in 2004, June 2006, and September 2006, each test yielded a statistically significant disparate impact on women. Rather than attacking plaintiff’s data or analysis regarding the disparate impact of the 1.5 mile on women, the DOC’s statistical expert concluded that plaintiff’s statistical analysis was accurate.  The defense expert conceded that, when the applicant pool for the CO position was viewed alone, there was indeed a disparate impact on women.  Instead, the DOC’s expert opined  that the plaintiff had failed to prove a prima facie case because the opposing expert did not choose the correct population for statistical analysis. The DOC argued that the plaintiff had to demonstrate that the timed 1.5 mile run had an adverse impact “on all women who took the test, not just female CO applicants.”  In particular, the DOC sought to pool CO applicant data with run performance data for female applicants seeking to be State Police Trooper Trainees and Protective Services employees.

The Court rejected the DOC’s effort to change the statistical outcome by aggregating the data. The Court held that although the DOC, the State Police, and the Department of Public Safety are all part of the Connecticut state government, each agency is responsible for its own hiring and as such each is a separate “employer” and “respondent,” as those terms are defined in Title VII.  Judge Hall reasoned that “the applicant pool [for the CO position] was large enough to determine that the gender disparity in passage rates is not attributable to chance.”  She concluded that none of the case authorities cited by the DOC in support of aggregation involved the aggregation of applicants across separate employers.

Judge Hall also analyzed whether the DOC had shown that there was a business necessity for all COs to take the 1.5 mile run test.  The Court noted that the defendant could still overcome the plaintiff’s prima facie showing of disparate impact by demonstrating that the challenged practice “is job related for the position in question and consistent with business necessity” per 42 U.S.C. § 2000e-2(k)(1)(A)(i).  Judge Hall acknowledged that while the Second Circuit in Gulino v. New York State Educ. Dep’t, 460 F3d 361 (2d Cir 2006), embraced the “significantly correlated” standard for determining the business necessity of a particular test, that standard provides that  “discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job.” Judge Hall held that the DOC had not presented any evidence from which a reasonable jury could conclude that the times imposed for passing the 1.5 mile run were significantly correlated with elements of work behavior relevant to the job of a CO.  As such, the Court found that the test could not be characterized as “job related for the position in question and consistent with business necessity.”  Judge Hall found it significant that all three of the defendant’s experts on the issue of business necessity had admitted that they could not empirically demonstrate that a CO applicant’s passage of the 1.5 mile run was correlated with that applicant’s performance on particular job tasks as a CO.

As a result, Judge Hall granted plaintiff’s motion for summary judgment, and denied the DOC’s cross-motion for summary judgment, finding that “the DOC had produced no evidence linking successful completion of the timed 1.5 mile run test with the requisite amount of aerobic capacity thought essential to good job performance.”

The lesson from this case is that employers should look closely at pre-employment physical testing to make sure that it is “predictive of or significantly correlated with” important aspects of the work that the applicant will ultimately perform.  This will ensure that the employer can mount a successful defense to any class action alleging that the test has a disparate impact on any protected group. This is particularly important in the present legal climate, as pre-hire processes and other selection and testing criteria are under intense scrutiny from both the EEOC and plaintiffs’ class action bar.