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AEI Review of EEOC v Walmart

Recently, Walmart agreed to pay a fine and discontinue use of physical abilities testing for grocery distribution order fillers as part of a settlement with EEOC regarding a suit alleging a violation of Title VII by causing disparate impact on female order filler applicants. This action can create questions for employers about using a physical ability screening program designed by Advanced Ergonomics as to whether the issues giving rise to the EEOC lawsuit against Walmart could exist within their AEI-designed testing program. The intent of this advisory is to review the issues raised by EEOC with Walmart, and speak to how those issues are addressed in the AEI program.

While the recent EEOC complaint and consent decree do not provide specifics about the type of physical abilities testing being used by Walmart, the complaint stems from female applicants who failed the Walmart test in 2010. Filings from Walmart in early 2010, in response to a previous EEOC complaint, indicate that elements of the physical abilities test being used at that time included the following:

1) The Carton Lift Test -- This evaluates an individual's ability to manipulate and handle cases of varying weights (19-55 lbs.), similar to the items in the distribution center. The objective is to move as many cartons as possible in a set period of time. The applicant must lift each carton, carry it 15 feet and place it on the correct platform at different height levels.

2) The Sit-Up Test -- This records how many sit-ups the individual can complete in one minute.

3) Arm Endurance Test -- Individuals use their hands to rotate a handled crankshaft known as the "arm ergometer," which is similar to bicycle pedals. This test records the number of revolutions completed in a two minute period.

The Walmart filings from 2010 also indicate that the candidate's scores from each of these tests were then input into a computer program to calculate whether, when combining all test results, the individual was "competitive" or "non-competitive" for the order filler job.

The EEOC complaint charges the following about the Walmart physical abilities test:

1) The PAT has a disparate impact on female grocery order filler applicants.

2) The PAT is not job-related for the position in question and consistent with business necessity.

The EEOC requires that any screening procedure used in an employment process to be validated according to methodologies detailed in the EEOC Uniform Guidelines on Employee Selection Procedures. When any protected class, such as females or individuals over the age of forty, experiences disparate impact from a screening procedure by having significantly lower pass rates than other demographic groups, the screening validation documentation must provide the EEOC-required evidence to indicate job-specificity. It must also demonstrate that the screening procedure design does not unjustly cause adverse impact, but instead, accurately reflects essential job tasks and demands. Additionally, the employer using a screening procedure for determining whether to hire an individual must demonstrate the business necessity of using the screening procedure by documenting such information as high injury rate experience, high physical demand level and injury reduction effectiveness of the screening procedure.

The Advanced Ergonomics physical abilities testing program has at its base three separate criterion-related prospective validation studies in different industries. These studies represent the strongest form of validation recognized by the EEOC and serve to support the approach taken in developing and validating physical abilities testing for all AEI client employers.

The AEI process directly follows the requirements of the EEOC Uniform Guidelines and involves the development of required validation documentation to establish job-relatedness and business necessity of the physical abilities test as a screening procedure for employment. This documentation details among other things, the job analysis process, statistical analysis of data, quantification of essential physical job demands, statistically significant confirmation of the essential physical demands from incumbent worker surveys, explanation of job specificity in test design, delineation of the basis for pass/fail cutoffs, and predicted injury reduction effectiveness of the screening procedure. This validation documentation is organized in a manner that clearly corresponds to the EEOC Uniform Guidelines requirements and is developed for every AEI client employer to provide the fullest extent of validation and defensibility.

Additionally, the AEI physical abilities test battery includes only test elements which reflect job-specific, essential physical tasks and demands. Since each test element is an essential job demand, each is scored individually with an objective “pass” or “fail” determination. As such, AEI test results objectively indicate whether the individual demonstrated the ability to perform each essential job task or not, without ambiguity or need for interpretation of descriptions such as "competitive" or "non-competitive".

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.

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