Is Post-Offer Employment Testing Legal?

By Stephen Carson
Chief Operating Officer, WorkSTEPS

The legality of post-offer employment testing (POET) depends on several factors. Employers have the burden of navigating these complexities to determine if a POET program is medically safe and legally compliant.

Questions to Consider

It is important to conduct your due diligence when researching POET vendors. You should consider the following before selecting a POET vendor:

• Has the vendor’s program been vetted by an employment labor law firm?
• Is the program continually monitoring the legal landscape and updating its protocols and procedures for compliance?
• Does the vendor’s program comply with:
  • Title VII of the Civil Rights ACT of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin
  • Americans with Disabilities Act (ADA) which prohibits discrimination against individuals with disabilities
  • ADA Amendment Act (ADAAA) which expanded the definition of disablement, to make it easier for people to establish they have a disablement, and are therefore, protected by the ADA.
  • Age Discrimination in Employment Act of 1967 (ADEA) which prohibits employment discrimination against individuals over the age of 40
  • EEOC’s Uniform Guidelines on Employee Selection Procedures (UGESP) which provides uniform guidance for employers about how to determine if their tests and selection procedures are lawful for purposes of Title VII disparate impact theory
  • Genetic Information Nondiscrimination Act (GINA) which prohibits discrimination based on genetic information in employment and health insurance
  • Family Medical Leave Act of 1993 (FMLA) which entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons
  • State-specific laws, such as California’s Fair Employment and Housing Act (CFEHA)

A response of “no” or noncompliance to any of these acts or guidelines can lead to a host of legal issues.

Legal Issues: EEOC vs Dial Corporation

The EEOC vs Dial Corp. case (469 F.3d 735, 8^th Cir. 2006) is a significant example of a “disparate impact” lawsuit. In this case, the Equal Employment Opportunity Commission (EEOC) accused Dial Corporation of discriminatory hiring practices, claiming that a strength test used in the hiring practice unlawfully disadvantaged women.

Case Overview

The EEOC filed the case on behalf of 54 women who applied to jobs at Dial but were not hired due to the strength test, known as the Post-Offer Employment Test (POET). Dial argued the test was designed to reduce the number of post-employment heavy lifting injuries. While the test did help lower injury rates, it did not accurately reflect the actual tasks required for the job. Moreover, the company applied the test inconsistently, leading to a disproportionate exclusion of female candidates.

Background

The EEOC claimed that in the three years prior to instituting the POET program at Dial, approximately 46% of new hires were women. However, after implementation, this number dropped sharply to 15%. The plant had previously employed both men and women in the same roles for years without any significant differences in job performance.

Statistical Findings

The EEOC presented evidence showing that only 38% of women passed the test, compared to a 97% pass rate for men. This, in and of itself, does not automatically prove discrimination, but does raise red flags.

In the case of Dial, it was determined that some of the women successfully completed the test but were still failed by the plant nurse managing the program, while male candidates were more often passed. This inconsistency in how the test was administered contributed to the discrimination claims.

Additionally, it was also determined that the test was significantly harder than the job itself, requiring applicants to perform four times the number of lifts as current employees, with no breaks. This poor test design led to 24 women being unable to complete the test, further disadvantaging female candidates. 

Legal Findings

 The EEOC concluded that Dial’s testing was discriminatory towards women. The company failed to demonstrate that the test was valid, meaning it did not accurately measure the skills needed for the job. As a result, Dial was ordered to pay over three million dollars in damages to the affected women.

Implications for Employers

Cases like these highlight the legal risks associated with employment testing and raise questions about whether such tests can be legally compliant. Employers must ensure that any POET is directly related to the job and applied consistently to all candidates to avoid similar legal challenges.

Legally Compliant Programs

Several employment testing programs on the market are designed to comply with legal standards and ensure safety. One example is the WorkSTEPS Functional Testing program, which emphasizes legally defensible and medically safe comprehensive employment testing practices. The program’s features and processes aim to support compliance with federal and state employment laws and avoid legal challenges.

WorkSTEPS Functional Testing Program

• Legal Review and Compliance Monitoring: The protocols and procedures have been reviewed by Jackson Lewis, a national employment labor law firm, and are regularly updated to stay in line with federal employment testing requirements.
• Test Design and Validation: In partnership with Biddle Consulting Group, WorkSTEPS developed the Physical Ability Validity Evaluator (PAVE), a proprietary tool that automates the design of physical ability tests. This approach helps ensure the tests are relevant to the job’s essential functions and meet standards set by guidelines like the UGESP and ADA, adding an unprecedented degree of defensibility for employers.
• Widespread Delivery Network: The program operates through a network of licensed and certified medical professionals at over 1,000 locations nationwide. Annual training is required for providers to maintain consistent test delivery and compliance.
• Standardized Reporting and ADA Compliance: Proprietary software generates standardized test reports to help employers make informed and consistent hiring decisions. The program also includes medical risk protocols and procedures for addressing ADA requirements when candidates need accommodation due to impairment.
• Monitoring and Analysis: Physical and occupational therapists oversee test results to ensure compliance and test delivery consistency. Employers have access to ongoing statistical analysis to help monitor the testing’s impact on hiring practices to prevent potential disparate impact issues.

These features are intended to help employers implement legally compliant testing programs while maintaining a focus on safety and consistency.

In conclusion, employers considering Post-Offer Employment Testing (POET) must prioritize both legal compliance and safety in their hiring practices. By selecting a vendor whose program has been rigorously vetted and is designed with compliance to federal, state, and local employment laws, employers can minimize the risk of legal challenges while ensuring fair and effective candidate evaluations.

Cases like EEOC vs. Dial Corporation underscore the critical importance of using job-related, validated tests that are applied consistently across all candidates. With a comprehensive approach, organizations can achieve a balanced, compliant POET program that supports workplace safety, meets legal standards, and fosters a fair hiring environment for all applicants.

 

If you’re interested in learning more about WorkSTEPS’ POET program, please contact us today.

 

Stephen Carson is the Chief Operating Officer for WorkSTEPS. Along with overseeing the day-to-day operations of WorkSTEPS, he works with industry leaders and teams to find solutions to complex problems. He joined WorkSTEPS in 1996 and brings almost 30 years of experience in occupational healthcare and comprehensive work injury management testing programs. Stephen holds a Bachelor of Science degree in business administration with a minor in corporate finance from Walden University and is certified through the Back School of Atlanta as a Certified Ergonomic Analysis Specialist.