A recent Equal Employment Opportunity Commission action against Walmart illustrates the dangers of hiring assessments that could be seen as discriminatory, particularly when they impact men and women differently. In this case, Walmart imposed a “physical ability test” on people seeking jobs at its 44 regional grocery distribution centers. Employees at the center take cases of grocery items from shelves and stack them onto pallets, which are then wrapped and loaded on to trucks to be delivered to retail stores. According to Walmart, the job required the ability to lift up to 80 pounds. When the company imposed the test in 2010, it apparently had a disparate impact on female applicants, resulting in many more men being hired to fill the positions. After a group of rejected female applicants complained to the EEOC, the agency initiated an enforcement action, claiming the test overstated the physical demands of the job. Although Walmart denied the test was discriminatory, it agreed to settle the action for $20 million, which will result in thousands of women receiving back pay. Walmart also agreed to stop using the test and perform additional antidiscrimination training.
Walmart may be the biggest company to fall into this trap, but it’s not the only one. A dairy cooperative in Buffalo, N.Y., recently settled a sex discrimination suit for $1.35 million over a hiring exam that required applicants to lift a 50-pound crate. The exam led to the company hiring 155 men and only five women over a 6-year period.
While physical ability tests are not universally illegal, they do create discrimination traps if the employer is not careful, as these cases show. If you believe such tests or other kinds of hiring exams are useful for your workplace, check with an employment attorney first to ensure the legal risks don’t outweigh the benefits.