When physical ability testing is challenged by the EEOC, it’s often on the grounds of the tests’ “disparate impact” on women.
The essence of the concept of disparate impact is that discrimination does not have to be deliberate to be unlawful under Title VII of the Civil Rights Act, which is aimed at eliminating discrimination in employment.
Intentional discrimination certainly qualifies as disparate treatment. But, writes the EEOC on a web page discussing its early applications of civil rights law, “the Commission held that discrimination also occurred when neutral policies or practices had a disproportionate, adverse impact on any protected class, usually minorities or women.”1
Fair in Form, Discriminatory in Operation
The Supreme Court confirmed the EEOC’s position, in the context of racial discrimination, in the landmark Griggs vs. Duke Power Company decision of 1971:
“The [Civil Rights] Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”
To learn how physical ability testing can be crafted to avoid running afoul of the EEOC’s disparate impact standard, read our eBook “EEOC Compliance: Guide to Fairness in Physical Ability Testing.”