EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 67 entitled to use a physical abilities test that had been validated; (iii) its use of the CRT test was job related and consistent with business necessity; and (iv) the EEOC failed to demonstrate the existence of reasonable alternatives that would effectively serve Defendant’s needs while resulting in hiring more female applicants. Id . at *5. The EEOC’s expert, a labor economist, opined that during the period of June 2, 2014 to February 10, 2020, 95% of CRT tests taken by male conditional hires to the driver position received a passing score, whereas only 76.6% of tests taken by female conditional hires to the driver position received a passing score. Id . at *6-7. Defendant relied on the “4/5 Rule,” which states that “a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.” Id . Defendant argued that the EEOC did not establish that its use of the CRT test had a disparate impact on female conditional hires. Analyzing Defendant’s application of the “4/5 Rule,” the Court held there was no dispute that the employer met the test, since even the EEOC’s expert noted that 95% of males passed, while only 76.6% of females passed. Id . at *8-9. However, the Court also held that Defendant overreached in applying the 4/5 Rule because: (i) it ignored the part of the rule indicating, “[s]maller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms or where a user’s actions have discouraged applicants disproportionately on ground of race, sex, or ethnic group;” (ii) Defendant’s own calculations were just above 80% and barely met the 4/5 Rule; and (iii) although the “4/5 Rule” is generally a benchmark, both the U.S. Supreme Court and EEOC have emphasized that courts should not treat the rule as generally decisive. Id . at *9-10. Finally, considering the issues of Defendant’s burden to demonstrate that the CRT test was related to safe and efficient job performance and consistent with business necessity, and the EEOC’s demonstration of an alternative selection method that had substantial validity and a less disparate impact, the Court held there were material facts in dispute that precluded summary judgment for either party. Accordingly, the Court denied both parties’ motions for summary judgment. EEOC v. Stan Koch & Sons Trucking, Inc. , No. 19-CV-2148, 2021 WL 3910001 (D. Minn. Aug. 30, 2021). The EEOC brought an enforcement action alleging that Defendant’s use of a physical abilities test for truck drivers had a discriminatory impact on female drivers in violation of Title VII of the Civil Rights Act. After discovery, the EEOC filed a motion for summary judgment, which the Court granted. The main physical requirements of the job for a driver operating a van were to get into and out of the cab of the truck, climb on and off the back of the truck, inspect the truck, which included stooping and crouching, and crank up and down the dolly legs that stabilized the trailer when it was not connected to the cab. Id . at *5. In April 2009, Defendant began requiring applicants to pass a physical abilities test, the "CRT test,” which measured a person's range of motion and torque in their shoulders, knees, and trunk. Defendant required applicants to obtain a certain score on the test, and if they did not pass, they would either need to take the test again and pass it, or they would not be hired. Defendant contended that the test was implemented in order to reduce the amount of workplace injuries to drivers by ensuring that hired drivers had the requisite fitness required for the position. The EEOC sought relief on behalf of all women drivers who failed the CRT test between February 2013 and January 2018. To show disparate impact, the EEOC relied on the analysis of three experts. The first was from a labor economist Dr. Erin George, who submitted a report finding that 93.9% of CRT tests taken by male applicants resulted in a passing score, whereas 52% of CRT tests taken by female applicants resulted in a passing score. Dr. George opined that Defendant’s use of the test was not neutral with respect to sex. Dr. Ronald Landis. a statistical analysist, evaluated the validity of the CRT test and found "no empirical evidence that supports the validity of this test in predicting relevant on-the-job injuries or the costs of those injuries." Id . at *9. The third expert, Dr. Charles Scherbaum, discussed employee selection, personnel management, and test validation, and opined that there was "no evidence of the validity of the CRT test that conforms to any accepted method for establishing job-relatedness." Id . at *10. Defendant did not offer any expert opinion evidence in its response to the EEOC’s motion. The Court held that the evidence demonstrated that the disparities between male and female applicants for driver jobs were directly attributable to Defendant’s use of the CRT test, and the disparities were so great that they could not have occurred by chance (nor did Defendant submit any other plausible explanation to explain the disparities). The Court thus held that the EEOC established a prima facie case of disparate impact. Further, the Court looked to whether Defendant established that the test was related to the needs of the job or whether it was a business necessity. The