AEI CLIENT ADVISORY - EEOC v JBS Carriers
Updated: Feb 4
Recently, JBS Carriers agreed to pay a fine and discontinue use of ErgoMed Screening as part of a settlement with EEOC regarding a suit alleging disability discrimination in their hiring process for a truck driving position. This action has created questions for clients using a physical ability screening program designed by Advanced Ergonomics as to whether the issues giving rise to the EEOC lawsuit against JBS Carriers exist within their AEI battery. The intent of this advisory is to review the issues raised by EEOC with JBS Carriers, and speak to how those issues are addressed with our battery.
The ErgoMed Screening consisted of a medical history questionnaire, a physical examination and a battery of physical ability tests. The lawsuit focused on the medical history questionnaire and physical examination in that those were the portions that screened out the aggrieved individuals. Three primary issues were raised:
1) JBS Carriers did not discuss with individuals for whom ErgoMed concluded there were disqualifying issues based on the medical history questionnaire or physical examination whether they needed reasonable accommodation to complete the post-offer screen, nor make individualized assessments of that need. This is a requirement under the ADAAA any time an offer is rescinded, and is referred to as the “interactive process”;
2) JBS Carriers did not discuss with these individuals whether they were able to perform the essential functions of the truck driving position, with or without reasonable accommodation, nor make individualized assessments of their ability to perform those functions; and
3) JBS Carriers received from ErgoMed medical information obtained in the medical history questionnaires and physical examinations. EEOC alleged that JBS Carriers denied the aggrieved individuals employment because of impairments, history of having impairments, or perceived medical impairments based on the medical information thus received.
The Advanced Ergonomics battery does begin with a brief health questionnaire that is narrowly targeted to assess whether there is a risk of injury to the individual in taking the tests in the specific battery for the given job at issue. There is no physical examination prior to, or as a part of the Advanced Ergonomics batteries, so the concerns associated with these elements are not present for our clients. We take the following steps to address the issues raised by EEOC with JBS Carriers:
1) The Advanced Ergonomics health questionnaire is not used to disqualify or prevent a candidate from testing. On the contrary, it is designed merely to identify any current contraindications to physical testing that might require physician clearance prior to testing, so as to allow a safe testing experience for the applicant. If the candidate or physician makes a request for accommodation in the testing protocol, Advanced Ergonomics discusses with the candidate and the employer to recommend how to best proceed with testing.
2) Advanced Ergonomics performs detailed job analysis of each specific job title for which testing is developed in order to quantify the essential physical demands associated with the essential job tasks. During this analysis, any reasonable accommodations utilized for workers to perform job tasks at the worksite are also incorporated into the test battery. Advanced Ergonomics also performs thorough reviews of alternative testing methods that could reduce adverse impact so as to recommend the most appropriate testing for each job. In addition, as a part of providing an interactive process for candidates as required by the Americans With Disabilities Act, Advanced Ergonomics provides a toll-free number for all failed applicants to discuss their results with a trained and qualified staff member. If the need for an accommodation arises during that call, Advanced Ergonomics will contact the employer and discuss the need for an immediate retest.
3) Advanced Ergonomics does not provide to the employer any medical information obtained on the health questionnaire. The employer receives only the physical ability test results after testing has been completed. This eliminates the potential question of whether the employer made an employment decision on the basis of a known impairment, history of impairments or perceived medical impairment based on information received during the physical ability test.
We hope this information is helpful in allaying any concerns that may have been raised by this case. It is also important to note that due to our focus on the EEOC Uniform Guidelines since our inception in 1989, and our adherence to those legal requirements and those defined in the Americans With Disabilities Act, we have successfully defended the validity and legal integrity of our testing program in every review and challenge; over 110 instances to date from over one million tests performed for employers. Please do not hesitate to contact us if you have any questions. As always, we appreciate the opportunity to be of service to you.