The EEOC recently filed suit against CSX Transportation, Inc. (“CSX”) in Federal Court in West Virginia, on behalf of a nationwide class of female employees. In the suit, the EEOC alleges that CSX’s policy of requiring employees and job applicants to pass certain physical strength tests in order to be eligible for certain positions has a disparate impact on women, and is therefore illegal sex discrimination under Title VII of the Civil Rights Act of 1964.
CSX uses two isokinetic strength tests, IPCS and IPCS Biodex, to measure upper and lower-body muscular strength of applicants for various jobs, including conductor and material handler/clerk. CSX also uses a three-minute step test to measure aerobic capacity, and an arm ergometer test to measure arm muscle endurance. The EEOC claims that these tests cause a significant disparate impact on female employees and job applicants because of their sex. For example, 87 percent of male candidates passed one of the isokinetic strength tests while only 30 percent of female applicants passed the same test.
While the use of these tests is not necessarily discriminatory, CSX will now have the burden of proving that the tests are reasonably necessary for safe and efficient performance of the specific positions to which the tests are applicable. CSX released a statement claiming that these tests are necessary for safety reasons.
This case is a signal to employers that the EEOC will continue to be critical of strength testing and other “blanket” qualifications that may screen out applicants in protected groups. Employers that use physical strength or endurance testing to screen employees and applicants for positions should carefully review these positions to confirm that the physical qualifications required for the position are reasonably necessary for safe and efficient performance. Broad policies that apply to large groups of dissimilar positions should be avoided. Where feasible, employers should consult medical or occupational experts to validate the necessity of the physical qualifications for the positions in question.
 EEOC v. CSX Transportation, Inc., 3:17-cv-02731 (S.D. W.Va. Aug. 1, 2017).
Andrew J. Horowitz is an attorney in Obermayer’s Pittsburgh Office, practicing in the areas of general and complex litigation and employment law matters. He can be reached at 412-288-2461 or Andrew.Horowitz@obermayer.com.