The city of Chicago has recently agreed to pay $2 million to settle a class action sex discrimination lawsuit brought by a group of women claiming the City’s firefighter test discriminated against them. Filed in 2011, the lawsuit claimed that the physical portion of the firefighter test discriminated against female candidates by screening them out at a much higher rate than male candidates.
It is not uncommon for employers to use tests or other selection procedures to screen candidates for hiring and promotion. These tests might measure intellectual or personality traits. They might relate to a person’s background, for instance exploring credit or criminal history. In the case of a physically demanding job, they might measure physical strength and abilities. However, when these tests or selection procedures disproportionately exclude people on the basis of race, sex, or another protected category, they may be illegal.
Aside from prohibiting intentional discrimination, Ohio and federal law prohibit the use of tests or selection procedures that are neutral on their face, but have the effect of disproportionately excluding a protected category of people. This latter type of discrimination is called “disparate impact.” Tests or selection procedures that have a disparate impact are illegal unless the employer shows the test or procedure is “job-related and consistent with business necessity.” If the employer fails to meet that burden, then the employer has illegally discriminated, even if unintentionally.
In the Chicago sex discrimination case, the test in question included a variety of physical strength and endurance tests. Female candidates failed at a much higher rate than males. However, the plaintiffs claimed that the test did not truly measure the capabilities actually related to the job, and thus was not job-related and consistent with business necessity. The settlement reached by the parties includes a newly designed physical test and monetary compensation to class members who can no longer take the test.
When most people think of employment discrimination, they think of intentional animus directed at an employee because he or she is within a protected group. That is not the only type of discrimination the law forbids. Both employers and employees should look out for employer policies that have an unintentional, but negative, impact on employees on the basis of race, sex, age, disability, or any other category protected by law.
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