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Physical Ability Test Lands Employer in Hot Water

by Hillary J. Collyer

As a good employer, you certainly have the right to make sure your employees are physically capable of doing their jobs. Thus, you may require an employee to undergo a medical exam when you have legitimate objective concerns about her continued ability to do the job. That’s fine if the exam is related to the job and consistently applied. If it isn’t, you and your company can land in hot water, as a Virginia employer recently found out. To learn more, read on.

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Deborah Merritt drove trucks for Old Dominion Freight Line, Inc. The company employs thousands of drivers, including “line haul” and “pickup and delivery” drivers. Line haul drivers often drive long distances across state lines, spending some nights and weekends away from home, while pickup and delivery drivers work locally, rarely working nights and weekends.

Because pickup and delivery drivers pick up and unload freight, the job requires more lifting and is physically more demanding than that of a line haul driver. Old Dominion’s workforce consists of approximately 3,100 pickup and delivery drivers, only six of whom are female.

Common carrier seeks uncommon position
For six years, Merritt was a line haul driver. She eventually became interested in working as a pickup and delivery driver so she could have regular hours and spend her nights and weekends at home. When she filled in as a pickup and delivery driver in May 2002, her supervisor found her work to be fully satisfactory.

Soon after, Merritt applied twice for permanent pickup and delivery positions at Old Dominion’s Lynchburg terminal. On both occasions, she was passed over in favor of a less-experienced male driver. When she asked why she wasn’t hired, terminal manager Bobby Howard told her that “it had been discussed and it was decided that [we] could not let a woman have that position.” On another occasion, he told her that the regional vice president was worried about hiring a female pickup and delivery driver for fear she would get hurt. On another occasion, he told her the vice president had concerns about making her a pickup and delivery driver because he “didn’t think a girl should have that position.”

Nevertheless, in March 2004, Old Dominion allowed Merritt to work as a permanent pickup and delivery driver. She was placed on a 90-day probationary period, which was unusual since male drivers aren’t subject to a probationary period.

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Injury halts hours of service
Merritt performed her pickup and delivery duties satisfactorily until September 29, when she injured her ankle on the job. When Old Dominion learned of the injury, it required her to take a physical ability test (PAT) to assess her ability to perform her pickup and delivery duties. Old Dominion uses the PAT primarily during the preemployment stage to evaluate potential hires, but only on a “very variable” basis.

Although her personal physician stated there was nothing about her medical condition that would prevent her from performing her job, when Merritt took the PAT, she received a failing grade. According to her, the tasks she had problems with were unrelated to her ankle injury. Nonetheless, Old Dominion terminated her employment based on the results of the test and her alleged inability to perform her job. A male driver was hired to replace her.

Merritt applies the brakes
After her termination, Merritt sued Old Dominion in the U.S. District Court for the Western District of Virginia, claiming sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Specifically, she claimed she was fired based on the company’s discriminatory belief that women are incapable of performing the duties of a pickup and delivery driver. The company asserted that it terminated Merritt for failing the PAT following her ankle injury, not for any discriminatory reason. The district court agreed and dismissed the case. Merritt appealed to the Fourth U.S. Circuit Court of Appeals  in Richmond, Virginia.

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Company’s case hijacked
The appeals court found that Merritt had presented sufficient evidence of discriminatory conduct to warrant a trial. In so ruling, the court acknowledged that Old Dominion had offered legitimate reasons for the termination decision: Merritt’s failure of the PAT and her alleged inability to perform her job duties. Nonetheless, the court determined the proffered reasons were insufficient to defeat Merritt’s claims because (1) evidence showed that the PAT wasn’t designed to test her physical shortcomings in doing her job and (2) Old Dominion used the PAT selectively.

In addition, the court noted that the incriminating statements by Old Dominion managers about not wanting women as pickup and delivery drivers evidenced a corporate culture that was rife with discriminatory attitudes. Accordingly, the Fourth Circuit sent the case back to the district court for a trial on Merritt’s claims. Merritt v. Old Dominion Freight Line, Inc., 2010 U.S. App. LEXIS 7352 (4th Cir., Apr. 9, 2010).

Bottom line
PATs can be helpful in reducing workplace injuries. However, like any employment practice, they must be handled with care. If your company uses PATs to assess employees’ ability to perform their job duties, make sure the test is (1) consistently applied to all employees, (2) related to the requirements of the specific job, and (3) designed to evaluate the actual shortcoming at issue. Overly broad tests can only get you and your company into trouble.

Editor’s note: In addition to the Title VII sex discrimination claim addressed by the court, the Americans with Disabilities Act (ADA) limits your right to require a medical exam to circumstances that are job-related and consistent with business necessity.

For more information about how to make medical inquiries of your employees without incurring ADA liability, see HR Guide to Employment Law: A Practical Compliance Reference, published by M. Lee Smith Publishers, LLC. Chapter one of the book, which discusses the ADA, was coauthored by DiMuroGinsberg attorney Michael E. Barnsback.