"To the premium podcast series from the Labor Relations Information System. This is well Aitchison and I'll be your host today as we talk talk about all things physical agility tests. Are they legal They exist in virtually every public public safety agency at least a condition of employment when you are hired in some places they exist as an ongoing job requirement. Why is it that there are a bunch of lawsuits around the country very routinely challenging the legality of physical agility holiday tests? And what are the legal theories that are going to be used and those types of cases. I have two guests today. Both both of them are shareholders in the Ogle tree. Deacons Law for Ogle tree is one of the largest firms in the country that represents management interests in labor and employment issues I'll go train has offices all over the country. We have an oak tree officer in Portland Oregon there in Seattle. There are just all over. The place They have almost nine hundred attorneys at a fascinating tidbit about the firm. Once once a year they actually get all those lawyers together in a room. They have a firm wide meeting. Were training and other stuff off. Goes on It seems to me the complete logistical nightmare. But somehow ogle tree manages to do that. the first of our guests is Ray. Gross Ray is a shareholder in the Detroit. Ogle TRAE office She's been a litigator for over twenty five years she Santa Lv cases at the federal and state level She sampled a number of EEOC cases and cases under title seven. I love the civil rights. Act and she'll tell you how that applies to physical agility test razor a graduate of the University of Miami. Hi It's Jamie or she received her bachelor's degree Magna cum laude And American University's Washington College of Law. She is is where she received her doctor of jurisprudence degree. Sarah Keno is also a principal shareholder in Ogle Ogle tree. She works out of Ogle Tris Tampa and Saint Louis officers offices. Excuse me I neglected to ask her how she manages both Florida Artyom Missouri Interesting Lot of I think frequent flier miles are involved there. Sarah has also been a litigator gator and provides a wide variety of counseling services to employers. She handles cases in the full range of alphabet soup. Super Federal Statutes the EPA The FM L. A. The ADA the ADA Gina and the like she also gets involved in workplace harassment investigations. Sarah's educational background involves receiving a Bachelor's degree from Southern Illinois University in Political Science Suma Comb laude and they her she received her doctor of jurisprudence from from Washington University School of law with that introduction. Let's Talk Physical Agility Tests with Ray and and Sarah Gray and Sarah Welcome to the podcast. Thank you all for sure. They say I got a turned onto. Watch you guys. Were doing by reading an excellent blog. Post under your names about Physical agility tests in fiscal agility. Tests are an issue that I think it's very confused in public safety agencies as to what's legal and not legal before we get into talking about the tasks and what the case lock and tell us on this. I hope you could tell us a little bit about Ogle trees blog post. I've For many years now have found those blog post to be very helpful on a wide variety variety of topics. Why is oak tree doing this? And what sort of feedback are you getting. Thank you for asking. Ogle tree is a national national and International Labor Employment Firm and we have approximately nine hundred attorneys who strive to stay on top of legal developments and we are at the cutting edge of technology where we like to think we are so we regularly post blogs we have our own podcast and we offer webinars and all types of client service facing development to keep our clients abreast. So if any of your listeners have any questions about employment law there's probably something on our blog or we have a podcast on that topic now. Our listeners are slightly more on the Union side than the employer aside although we have a whole bunch of listeners on both sides and I like to direct people to Ogle tris webpage and also there's there's blockposts that come out from a wide variety of employer law firms and the message that I give out is look. This information is good. It's timely and is accurate and basketball. It's free doesn't cost anything to sign up for the blog. I hope I'm not giving away a secret here. Absolutely not it's easy subscribe n- okay now so let's get into physical L. agility tests and and very broadly. The topic that you're post was about and that would be physical agility tests in in in the context of employment discrimination and let's start way up at the ten thousand foot level. Why is it that physical agility detests can raise issues under federal law? What sorts of problems can an employer get into? Yeah I think starting starting as a ten thousand foot level to go back we think about title seven. It's federal law. We usually think of intentional discrimination. meaning that an employer volition makes a decision based on a protected characteristics such as race or gender but titled Seven also protect disparate impact ax claims. So you have the disparate treatment which is intentional and disparate impact which relates to affects a protected group and a high ratio which will get into the eighty percent of the rule of thumb shortly but basically a disparate impact occurs when an employment measures such a physical ability ability or agility test disproportionately affects one group to their detriment so path what we often refer to as shorthand for physical agility tests because of their physical demands it can result in for example. Say More women or people over the age of forty failing the test which can lead to legal challenges kissed let's Let's hone in a little bit on the difference between disparate impact and despair treatment with despair. Treatment you need need to establish your plaintiff in a case you need to establish an improper motive That someone is. The employer is motivated by someone's its presence in a protected class with despair treatment. You can have an employer that is doing something for the best of reasons and yet it it can still be liable. Is that right. Yes that is like that so You know the the the way we see pats challenged typically are in the disparite treatment area spirit impacts of nation requires proof of intent. So that's your. That's what people think of as your traditional discrimination claim that requires showing that that somebody either made some attention discriminatory comments or that you know somebody was subgroups are treated more favorably than others. I those kind of claims don't happen in the testing during lunch. But that's example of a dispirit treatment claim. Testing world would be if you only administered the test to females Nelson not males in the testing. Were on what was Seymour's spirit impact clamps those are Clinton. Don't require proof of intent. That's a claim that's based on what is you seemingly neutral process test. That's given the same way to everybody but has the impact of screening out at a disproportionately high rate a certain group of people. So if you give the test to all the males and all females but a higher percentage than would be expected by chance of the females for fail. The attest that that they went to testing to have to spare intact. Now I think that's a great opportunity to segue into the eighty percent rule rule what disparity impact how to courts measure win a difference in results that breaks down a long protected class lines when it is sufficient to trigger dispirit impact analysis. Sure so the EEOC as well as other enforcement agencies and courts courts have adopted the four fifth or eighty percent rule which we've mentioned a couple of times already. The rule is a non-statistical comparison of selection ratios corrected and non-protected groups of applicants. It's used to determine whether the selection rate for any group is substantially less and substantially actually less in this context is less than eighty percent then the selection rate for the highest group and the case of physical agility test where the pass rate for one girl is less than a percent of the path rate for their most successful group up for adoption of an adverse impact generally arises so if women pass for example example less than eighty percent of the time that men passed the same chest we have a presumption of a disparate impact. Does that get the employs elise over the hurdle of meeting their initial burden of proof in these cases Yeah the I think that of your question. I'm sorry okay no problem so well yes that's true. I mean simply because you know there is an eighty percent. Violation doesn't necessarily mean that employers violated through all but it does as you suggested. Get the plaintiff for playing group of plaintiffs Over the hurdle in terms of their initial showing once. There's a showing that there's violation of evidence of impact. Ferdinand falls on the employer employer to demonstrate that its use of the test is is what we call job related and consistent with business necessity now that I think we're going to talk a little bit more detail but that typically requires a pretty comprehensive validation of the test so begins with job analysis and ends with either a content or criterion invalidation to show that the test. Actually predictive of how well a person will do on the yeah and a we will get to that in a moment before we do. I want to go back to the statistics for a moment. Do you ever see other types of statistical analysis showing up in the assessment of updates paths physical agility test for example. DC use. Oh standard deviations as a substitute for the eighty percent rule girl. Yes you sometimes see that. Typically by the by the defendant or the employer because those kinds of houses tend to be more precise within the eighty percent rule. I'm Sarah said. Eighty percent was really a comparison factor. It's not a true statistical test but I would also cautioned that many many federal court judges will adopt the eighty percent. Rule was sort of their preliminary examination in terms of whether or not the point of group has made their threshold case simply because it is widely accepted and because it is the rule that is most often suggested as being appropriate by the EEOC. And Sarah Lumpy. Follow up with you on something you said a little bit earlier Physical fitness tests have the potential of having a disparate impact. On protected classes. We talked about title seven of Civil Rights Act of a little bit Which protects against discrimination on the basis of you've mentioned saxes one of the protected classes under title seven. I seem to remember some old title. Seven fiscal fitness tests that actually showed a disparate impact on the basis of race. Is that possible as well. I suppose that it is possible. I I think the more recent analysis in the more recent focus are on tests that that have a disparate impact on age and gender but if there was a test develop in a certain way it certainly not precluded that it would have an impact on race. We do see that in the context of other types of pre employment testing and ray might WANNA weigh in on those so. It's but it's outside of physical test. It's more in the cognitive or mental ability test."