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58 test.537 The plaintiff had failed the BOCAT because her is arbitrary to treat them differently in terms of testing torso touched the steering wheel and her thighs hung requirements. The BOCAT test does appear to differ over the side of the seat, which prevented her from ac- from testing in say, Lanning, where a requirement was cessing bus controls in the prescribed manner. When imposed on applicants that incumbent employees were she had taken the test shortly thereafter she had again not required to meet. In LA Metro's situation, the failed. The plaintiff then sued under the California BOCAT purportedly applies a standard that is also re- nondiscrimination statute, alleging physical disability quired for incumbent employees, but measured through and genetic characteristic discrimination, harassment, other means. and retaliation, both counts premised on her obesity. LA Metro argued that obesity is not a disability under V. TRANSIT AGENCY PRACTICES California law unless it has a physiological cause.538 The court agreed that either for actual disability or being The author queried 21 of the largest bus properties regarded as having a disability, the underlying condi- about various aspects of physical ability testing: preem- tion must have a physiological cause to be protected ployment tests (requirements and limitations), periodic under California law. However, the court held that the employee tests (requirements and limitations), post- plaintiff was not required to show that the employer incident tests (requirements and limitations), school believed that her obesity was the result of a physiologi- bus requirements, drug and alcohol policies, post-illness cal condition, merely that the obesity was so caused. testing, and lifestyle testing. Fourteen of the agencies The plaintiff also argued that LA Metro's admini- responded to the questionnaire (see Appendix C); a 15th stration of the BOCAT violated the equal protection did not complete the questionnaire but provided infor- clauses of the California and federal constitutions be- mation about physical ability testing at the agency. At cause LA Metro required obese job applicants to pass least for these respondents, spirometry and mandated the BOCAT, but did not require employees who became drug and alcohol testing are the most prevalent forms of obese after being hired to pass the BOCAT, thus treat- physical testing. Several of the respondent agencies do ing job applicants differently than incumbent employ- engage in other physical ability testing, as described ees. This argument rested on the premise that job ap- below. None of the responding agencies indicated that plicants and incumbent employees are similarly they impose lifestyle restrictions such as nonwork use situated. LA Metro argued that it was justified in treat- of tobacco or weight limits (except as BMI implicates ing applicants differently than incumbent employees, sleep apnea or as weight is directly related to equip- 540 because LA Metro can monitor its employees through ment requirements, as described below). None of the passenger complaints, performance monitoring by su- responding agencies indicated that state school bus re- pervisors, mystery rider reports, and fitness-for-duty quirements applied to their drivers. Preemployment exams, so that decreases in functionality become readily physicals appear more broad-based than employee apparent, whereas applicants are not subject to moni- physicals, which seem to be more limited to CDL hold- toring other than through preemployment testing. LA ers and safety-related employees. Fit testing seems to Metro relied on Loder, supra, in its argument that it be imposed on job applicants rather than incumbent was permissible to distinguish between applicants and employees. Other testing, such as isokinetic testing of employees under these circumstances. The plaintiff required job movements, may be required of incumbent argued that Loder was distinguishable because there employees under specified circumstances, such as re- the employer showed a connection between substance turn from back injury when the agency conducts testing abuse and employee productivity or absenteeism, while to measure back muscle functionality. LA Metro had allegedly failed to show a connection be- The descriptions of transit agency practices in this tween the BOCAT and safety. section are based on questionnaire responses, as well as The appellate court did not rule on the plaintiff's additional primary and secondary research on the prac- equal protection claim because she had failed to raise it tices of respondents and other transit agencies. The at the trial level. The equal protection clause is meant author was not able to determine the prevalence na- to prevent the government from arbitrarily discriminat- tionally of any of the practices described in this section. ing among its citizens, requiring instead that similarly In fact, as responsibilities for conducting employment situated persons must be treated equally under the testing are sometimes diffuse within an organization, law.539 Thus an equal protection challenge to a testing requirement that applies to job applicants but not to 540 While details were not available, the MBTA reported ad- incumbent employees rests on the assertion that appli- dressing obesity for both applicants and incumbent employees cants and employees are similarly situated and that it if obesity could be related to sleep apnea. Response to TCRP Questionnaire from Kate LeGrow, Director, Occupational 537 Health Services, Questions II.B., Source of requirements for See V. Transit Agency Practices, infra this digest. conducting pre-employment tests: Specific pre-employment tests 538 Hines v. L.A. County Metro. Transp. Auth., B208389 and standards for rail/bus operators; II.C. Source of require- (Cal. App. 2009, Nov. 6, 2009), at 318, citing Cassista v. Cmty. ments for conducting pre-employment tests: Specific pre- Foods, Inc., 5 Cal. 4th 1050, 22 Cal. Rptr. 2d 287 (Cal. 1993). employment tests and standards for mechanics; and IV.B., 539 Cooley v. Superior Court, 29 Cal. 4th 228, 253, 57 P.3d Tests and standards for current employees: Specific employee 654, 127 Cal. Rptr. 2d 177, 196 (Cal. 2002). tests and standards.