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The employment attorneys at Spitz, The Employee’s Law Firm recently met with a client who posed an interesting question: can an employer legally require an applicant for employment to perform a strength or agility test prior to hiring him or her? The answer – as the old legal adage goes – is it depends. The Americans with Disabilities Act, the Code of Federal Regulations, and Title VII of the Civil Rights Act of 1964 all permit pre-employment strength/agility tests. An employer may refuse to hire an applicant if the strength/agility test reveals that the applicant is unable to perform the essential functions of the job. However, in order for the test to be legal, an employer must show that the tasks being tested are job-related and a business necessity. For example, an employer can legally require an applicant for the position of assembly line worker to pass a manual dexterity text, but it cannot legally insist upon the applicant also passing a lifting test.

But what happens when a strength/agility test results in most women being disproportionately excluded from a certain job? If an employer can show that the disparate impact is an uncontrollable side effect of the test, the test will likely withstand a legal challenge, unless the applicant can show that a less discriminatory alternative means of testing was available to the employer.

The case of EEOC v. Dial Corp. provides a nice example of the legality of pre-employment strength/agility tests. In Dial, a sausage-making factory required applicants to carry 35 pound weights back and forth and lift them to heights of 35-65 inches. While 95% of male applicants passed the strength test, only 40% of female applicants passed. The U.S. Eighth Circuit Court of Appeals held that the test was more difficult than the job and that it did not meet its stated purpose of reducing workplace injuries. As such, the Eighth Circuit affirmed the lower court’s award of $3.3 million to 52 rejected female applicants.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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