The 9 Key Steps to a Defendable Post-Offer: Step 4

This installment of our nine part series looks at frequency of physical demands tested during an employment test.

Challenge One: Think for a moment about performing a functional capacity evaluation or post-offer test on an ADAAA-covered qualified individual. If the job was rated as being at the “sedentary” physical demand level, how would you design your test?

This questions not only the forces involved in such physical demands as lifting but, for the “Thinking Evaluator”, the six other physical demands included in the Department of
Labor definition of “strength”. To illustrate the point of considering the frequency of more than just lifting, let’s look at a Court of Appeals case:

EEOC v. E. I. Du Pont De Nemours & Co. (Civil Action No. 03-1605), which culminated in a $1,300,000 jury verdict for the EEOC, revolves around the use of an FCE in a stay-at-work situation.

Careful reading of the available documents reveals that, “The FCE tested her performance of rigorous physical tasks such asclimbing, standing for hours on end, lifting more than 20 pounds, straight leg lifts, and overhead work (emphasis added throughout).”

The documents goes on to state, “Ms. Barrios was required to take the painful functional capacity test which was not related to her job functions and ultimately resulted in her involuntary termination”. The test “rated her as capable of ‘light’ work (more demanding than her sedentary job) but noted “significant instability” while walking heel-to-toe carrying a box of weights back and forth on a 100-foot long line.”

This case is important to the evaluator because the court looked at frequency of walking (two repetitions of 100 feet each) and lifting to 20 pounds. In a standardized protocol emphasizing safety, an occasional lift to 20 pounds would have required multiple lift repetitions at progressively increasing weights.

Lesson One: Reflecting on the Court’s written finding, one sees the necessity to perform an essential function job analysis before performing such a crucial test. (Crucial in that Ms. Barrios livelihood was terminated as a result of the test.) The job analysis must be based not on the Department of Labor’s Physical Demand Characteristics of Work but on the actual metrics of the job (walking 100 feet x 1, lifting 10 pounds from 3 to 30 inches 2 x hour).

Lesson Two: if the main reason for testing Ms. Barrios ability to walk was to judge her ability to evacuate the plant in an emergency (an essential function), why was she tested carrying a heavy box using a heal-to-toe walking style? And why was she tested over a 200 foot distance instead of the required 100 foot distance. The frequency of the walk was 200% higher than required.

Lesson Three: the frequency of standing in this test appears to be of a constant nature. That is, according to the written finding of the court, the individual was tested not a standing for 3 or 4 times per hour but for “standing for hours on end”. How would you defend such a frequency of standing?

Finally, for a look specifically at lifting frequency we turn to Equal Employment Opportunity Commission, Appellee/Cross-Appellant v. Dial Corporation, Appellant/Cross-Appellee in case numbers 05-4183, 05-4311 from November 2006.

Dial involves the effect verbal test instruction can have on the validity of a well written test protocol. Specifically, the job in question required that qualified entry level employees working in the sausage packing area of the plant lift and carry up to 18,000 pounds of sausage per day. The court noted that this requirement included carrying approximately 35 pounds of sausage. The carry was followed by a “lift and load” to heights between 30 and 60 inches above the floor. It was also noted that a day’s cumulative activity included up to four miles of walking while performing the cycle of lift, carry, lift, and load. A job analysis revealed that the job demands included performing 1.25 lifts per minute on average with periods of recovery between lifts.

At issue in this case, among other things, were test instructions that had qualified individuals perform 6 lifts per minute, on average, usually without any breaks, rather than 1.25 per minute. The rate of lifting tested was 400% higher than required of the job.

Lesson Four: the work evaluator is advised is to consider the detail to which the court went to examine the frequency of lifting in a test that denied employment to otherwise qualified individuals. The Thinking Evaluator is cautioned to be prepared to testify as to the reasoning behind the frequency of physical demands tested as well as the forces and postures selected.

The 9 Key Steps to a Defendable Post-Offer:

 Understand the Concept of Agency Relationship