Friday, May 2, 2008

Lawsuit illustrates potential problems with employee testing

Today's Jackson (Tennessee) Sun is reporting that Kilgore Flares Co., a Tennessee defense weaponry manufacturer, has been hit with a class action lawsuit related to its neurological testing of hirees:

The class action lawsuit, filed on behalf of Robinette Anderson, states that the company uses a nerve test to determine who it hires. The test is supposed to determine the risk of potential employees' developing carpal tunnel syndrome, according to the suit.

The suit states Anderson was denied a position at the Toone plant after being tested. The suit also states the findings from these tests are "based upon unreliable measures." ...

"The country's leading scientists have concluded the nerve conduction exam has an exceptionally small, and often times wrong, predictive value for determining carpal tunnel syndrome," Anderson's attorney Justin Gilbert said in a press release.

"More fundamentally, we believe this type of 'propensity testing' flings open the door to forced genetic exams for purposes of hiring discrimination," Gilbert said. "We want employers to make judgments based on workers' abilities, not on dubious genetic predictions."

Depending on the results of the nerve testing, job applicants are either rated as having no restrictions as to where they work or as it being inappropriate for them to work in "highly wrist-intensive" jobs, the suit states.

The lawsuit contends Kilgore violates the Americans with Disabilities Act because it requires a person who's hired to fall into the no restriction category, according to the lawsuit.

The ADA allows for medical testing of job applicants as long two conditions are met: 1) a conditional offer of employment has been made before the testing occurs; and 2) the employer requires the same testing for all individuals entering the same job category. There is no requirement that the medical exam be job related. Once an employee is hired, however, an employer may only require medical exams if doing so is job-related and consistent with business necessity.

By all accounts, then, Kilgore's testing appears to be on the level in how it's administered. The lawsuit, however, seems to delve deeper by claiming that even if the testing itself is legitimate, Kilgore used the results to discriminatorily screen out any hiree with a propensity for carpal tunnel syndrome. That use of employee testing may pose problematic for Kilgore, even if the testing itself is legal. The test does not seek to determine which hirees currently have carpal tunnel syndrome and therefore might be job restricted, but which have a propensity to develop it down the road. I also question Kilgore's reasonable accommodation obligations to those hirees with actual carpal tunnel syndrome. It will also be a problem for Kilgore if it proves true that the exam has a small and often times wrong predictive value.

The takeaway for employers from this story is two-fold:

  • Employers should make sure that any tests and selection procedures are properly validated for the positions and purposes for which they are used, and can be reasonably relied upon for that purpose.
  • Selection criteria should be job-related and consistent with business necessity. If a criteria singles out a specific group, employers should scrutinize the risk of using that criteria versus the benefit derived from it.