The Equal Employment Opportunity Commission (EEOC), which is controlled 2-1 by Democrats from the Obama era, is cracking down on companies that rely on pre-employment physical tests when these tests result in disparate impact, often involving female applicants.

eeoc-position-on-physical-testingRecently, Hirschbach Motor Lines was ordered to pay $3.2 million to a group of female job applicants for truck driver positions who were eliminated because of the company’s physical testing program, even after the Department of Transportation (DOT) had medically cleared them as truck drivers.

Applicants were tested for their ability to balance and stand on one leg, touch their toes while standing on one leg, and to crawl, and the results had a disparate impact on females, according to the EEOC.

According to its Strategic Enforcement Plan (SEP) released in 2017, the EEOC will continue to focus on class-based recruitment and hiring practices that disparately impact minorities, the disabled, older workers and other protected classes.

Generally speaking, if a physical ability testing (PAT) program can be shown to fulfill a genuine business necessity, such as being tailored to test only for the exact abilities needed for a certain job, it can pass the EEOC’s muster, but the Hirschbach PAT was not focused on specific physical skills needed and was therefore weighted against female applicants, according to the EEOC lawsuit that resulted in the payment.

Even if an employer can prove business necessity, use of a PAT may still be prohibited if an alternative practice could achieve the employer’s objectives with less adverse impact, according to the Ogletree Deakins law firm.