Arbitration & Litigation Support
As with any fight, the best way to come out a guaranteed winner is to avoid it in the first place. Our experience and perception - and very likely your's is that all too often what gets agencies into trouble is not the nature of a validation study or even its findings but rather the practices that agency engages in before, during, or after implementation.
Legal Concerns
Job relatedness means that the test score must be predictive of the ability to perform the essential functions of the job and be of business necessity. The test standard must be able to predict those who can do the job and those who can not. Norm-based standards, arising from any vendor or even in-house will fail the job relatedness requirement. This is due to the nature of norms - which only describe how a group of people performed on a particular test. In the absence of a validation procedure, even norms developed on an incumbent workforce are not predictive of the ability to the job, just descriptive of those in the job.
Same job, same standard is essentially the effect of Section 106 of the revised Civil Rights Act.
"It shall be unlawful employment practice for a respondent, in the connection with the selection of referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex or national origin."
Again, norm-based standards, frequently those that are gender-adjusted require a hard look in light of Section 106. As an aside, the position of the prior DOJ's Employment Litigation Division administration publicized a position that was not necessarily consistent with the letter of the law. Current DOJ leadership have indicated a willingness to enforce Section 106 as it is written.
Adverse Impact - Title VII of the Civil Rights Act of 1964 requires that an agency can not use a test standard that demonstrates adverse or disparate impact against a protected class unless the test standard is “job related”. Adverse impact is defined as a protected class passing a test at a less than 80% rate of the unprotected class. The key wording is that standards that show adverse impact can be used if there is data to show that the test standard is job related. A recent court case (Lanning vs. SEPTA, U.S. District Court of SE Penn 2000) clearly affirmed this.
It should be pointed out that many agencies attempt to anticipate the impact of standards by evaluating the current performance levels of incumbents against the proposed requirements. In response, administrators will abandon the implementation of the same standards by citing adverse impact. In fact, there is no adverse impact because there are no requirements. Our standing recommendation is to allow one to three years or more for the implementation of standards. That phase-in period allows for programming, evaluation, education, and support of employees to meet the new standards. Only then would there be an adverse impact. The current levels of incumbent fitness suggest a training need, not an adverse impact.
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Inconsistent application of policies is another predisposing factor to litigation. Preferentially applying provisions of agency requirements are triggers to action under the Americans with Disabilities Act, CRA, and the Age Discrimination in Employment Act. The O'Fallon case is one example, although many exist at several levels.
Litigation Experience
Our technical advisor (Dr. Tom Collingwood) has served as an expert witness and provided expert testimony for several court cases involving fitness standards and programming.
USA versus City of Wichita Falls,TX Police Dept (47 FEP cases 1629, ND Tx, 1988)
W-82-CA-11 EEOC versus City of Waco Texas (1988)
A-85-CA-185 EEOC versus Texas Purchasing General Services (1988)
State of New York versus the Yonkers, NY Police Dept. (case number unknown, 1989)
Peanick vs US Marshals Service (case number unknown, 1994)
Miami Beach Tactical Officers Assn. Vs. the City of Miami Beach (case number unknown, 1994)
Franz vs the City of O'Fallon, MO (case number unknown, 1995)
Faulkenbury vs the City of O'Fallon, MO (case number unknown, 1996)
Of note is that in most cases the issue was not the validity of standards as it was how an agency proceeded to implement standards. As a consequence, FitForce's specifies implementation policy and procedures and not just standards validation. The consultant team has also had experience in providing expert testimony in union bargaining sessions concerning the validity of physical fitness, fitness testing, and fitness standards.
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