EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 15 B. The Elimination Of Systemic Barriers In Recruitment And Hiring Over the past decade, the EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. 85 Most of its recent enforcement activity has focused on combatting hiring practices that could result in age discrimination. But this year saw a number of judicial decisions involving the EEOC’s other attempts to combat discrimination, particularly discrimination against women, including through the use of pre-employment screening tests. 1. Recent Judicial Decisions Involving Discrimination Against Women Applicants And Employees The EEOC’s efforts to eliminate potential discrimination that is delivered through the use of pre- employment screening tests has a long history. Those cases have fallen out of fashion as the EEOC has focused its attention on other ways that employers might unwittingly erect barriers to recruitment and hiring of certain groups. But the rise of third-party firms who offer assistance to employers in making employee selections could give rise to a new wave of these types of lawsuits. Employers who use such services must be certain that the methods they use are suited for their purpose and have been properly vetted for disparate impact. An employer who fails to independently verify the methodologies used by these firms run the risk of incurring discrimination charges against themselves. For example, in EEOC v. Stan Koch & Sons Trucking, Inc. , 86 the U.S. District Court for the District of Minnesota granted summary judgment on liability for the EEOC and against an employer who relied on a physical abilities test to select employees for truck driver positions. The EEOC alleged that the physical abilities test had a discriminatory impact on female drivers. 87 The employer required new employees to pass a physical abilities test, called the “CRT test,” during orientation. If they failed, their employment offers were revoked. 88 The EEOC introduced expert evidence that found that “93.9% of CRT tests taken by male applicants resulted in a passing score, whereas 52% of CRT tests taken by female applicants resulted in a passing score,” a pass rate that was statistically significant to 24.9 standard deviations. 89 The EEOC also introduced expert evidence from an expert on employee selection, personnel management, and test validation, who found “no evidence of the validity of the CRT test that conforms to any accepted method for establishing job- relatedness,” and that “the job task analyses [employer] did in 2009 and 2015 did not document the physically demanding tasks of the driver position, so they could not substitute as ‘validation strategies,’ and that “the job task analyses were insufficient to show that the CRT test is content-valid because they did not establish the necessary link between the tasks a driver at [employer] performed, the physical ability necessary to perform those tasks, and the physical abilities measured by the CRT.” 90 The employer had not offered nay expert opinion of its own. The Court analyzed the employer’s motion under the “disparate impact” analysis of Title VII, which prohibits facially neutral employment practices that fall more harshly on one group than another and cannot 85 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, at 6-9 (identifying the elimination of barriers in recruitment and hiring as one the EEOC’s national priorities, and stating that “[t]he EEOC will target class- based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities”). 86 EEOC v. Stan Koch & Sons Trucking, Inc. , No. 19-CV-2148 , 2021 WL 3910001 (D. Minn. Aug. 30, 2021). 87 Id . at *1. 88 Id . at *2. The CRT test “measures a person’s range of motion and torque in their shoulders, knees, and trunk,” and computes this information into a “Body Index Score.” Id . The court noted that “CRT markets the test as preventing ‘musculoskeletal disorder injuries to knees, shoulders, and back’ by matching the physical abilities of a job applicant to the physical requirements of a job.” Id . The employer hired another third party company, NovaCare Work Strategies, “to analyze the work tasks of its various driver positions and classify them according to exertion level, such as “medium duty” or “heavy duty,” under the definitions provided in the Dictionary of Occupational Titles,” which were then used to ascertain the BIS needed to perform the duties of the position. Id . 89 Id . at *2. 90 Id . at *3.

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