EEOC-Initiated Litigation - 2023 Edition

©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 41 offers were revoked.111 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.112 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.” 113 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 be justified by business necessity.114 The court held that the EEOC had easily met the requirements of its prima facie case, i.e., to show: “(1) an identifiable, facially-neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two.” 115 The court noted that the first two elements were clear: “the CRT test as a means of selecting employees is a facially-neutral personnel practice,” and “[employer’s] own data reveals that the test had a disparate effect on female job applicants in the form of low passage rates.” 116 With respect to causation, the court noted that “courts consider tests of statistical significance to determine whether a disparity can reasonably be attributed to chance.” 117 Based on the EEOC’s statistical evidence of causation, the court concluded that the EEOC had met its prima facie case. The burden then shifted to the employer to show that its test was job related and consistent with business necessity.118 The employer relied on the fact that its cutoff scores for the CRT test were based on the professional estimates of one of CRT’s founders. But that founder had passed away years ago and a number of CRT’s relevant records had been destroyed in a flood.119 Although the employer’s cutoff scores were consistent with CRT’s literature, the court found that CRT representatives “could not offer further specifics about the data sets or peer-reviewed literature,“ and although the “calculation” or “formula” 111 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. 112 Id. at *2. 113 Id. at *3. 114 Id. 115 Id. 116 Id. 117 Id. However, the employer pointed out problems with how the EEOC’s expert had determined gender for use in her statistical analysis by running applicant’s first name through a website database called to identify the gender(s) typically associated with that name. Id. at *5. However, the Court held that this issue would have impacted less than half of one percent of the sample and therefore the EEOC’s expert’s “handling of missing or inconsistent gender data does not materially undermine the strength or reliability of her opinions.” Id. 118 Employee Selection Procedures. Id. at *6. The Court never addressed that question, however, as it found that the employer had failed to submit any evidence that the CRT test was relevant to the jobs applied for. Id. The court acknowledged that “some level of physical strength is required to be a driver at [employer],” noting that “[d]rivers have to get into and out of the cab, climb on and off the back of the truck, inspect the truck, and crank up and down the trailer’s stabilizing dolly,” and depending on the truck, “secure their cargo using heavy tarps and straps, and … assemble a decking and ramping system.” Id. But that alone was not enough. To meet its burden, the employer had to show that the CRT test-generated BIS scores and the employer’s cutoff for determining pass or fail had a “manifest relationship to the employment in question.” Id. at *6-7 (quoting Hawkins v. AnheuserBusch, Inc., 697 F.2d 810, 815 (8th Cir. 1983)). The Court noted that “[a] cutoff score is permissible if it is ‘based on a professional estimate of the requisite ability levels, or, at the very least by analyzing the test results to locate a logical ‘break-point’ in the distribution of scores.’” Id. (quoting Bew v. City of Chicago, 252 F.3d 891, 895 (7th Cir. 2001)). 119 Id. at *7.