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62 workers or a post-employment test for operators or ser- criminatory tests. Reliance on state law in developing a vice workers. policy is not necessarily a viable defense. Tri-Met also assesses physical capacity to perform This section reviews the legal parameters that gov- essential job functions based on medical evaluations, ern designing and implementing physical ability test- including medical history and review of musculoskeletal ing, discusses various issues that transit agencies may and general health. As indicated by the medical evalua- wish to consider in formulating physical ability testing tion, a candidate may be asked to demonstrate the abil- policies, and poses some questions to ask in assessing ity to bend, squat, or perform some other job-related the legal viability of a physical ability policy. The ques- maneuver, but no standardized physical capacities tions assume--as does the rest of the discussion of evaluation program is required. In the case of customer structuring these policies--that the transit agency does service representatives, however, the employment en- not engage in intentional discrimination in designing or trance exam includes a work test to simulate the task of implementing the policy. It is imperative that where lifting cases of schedules or other printed materials. physical ability testing is adopted, the same tests be Applicants are required to lift a 50-lb crate to chest required under the same conditions for all applicants or height three times. As of November 2009, there has employees in the position for which the test is required. been an extremely low failure rate. Given the risks of improper design and implementa- tion of physical ability testing, individual managers I. SamTrans551 should not be responsible for these activities. Moreover, SamTrans, San Mateo County, California (www.sam transit agencies may be advised to provide training to, conducts fit testing as part of its interview managers on the legal requirements for physical ability process in hiring new bus operators. The test is con- testing. ducted in actual fleet vehicles, with the applicant re- quired to demonstrate that he or she is able to safely A. Summary of Legal Parameters553 reach, adjust, and operate (as applicable) the brake and A transit agency may choose to implement physical accelerator pedals, mirrors, steering wheel, and other ability testing for job applicants and employees in controls. The applicant must be able to turn the steer- physically-demanding job positions to ensure that em- ing wheel without having his or her torso touch the ployees are able to safely perform essential job func- steering wheel. If an applicant is not able to pass the fit tions. In addition to benefiting the transit agency's cus- test, he or she does not reach the conditional offer stage tomers and the employees themselves, ensuring that of the hiring process. employees are physically capable of safe job perform- SamTrans has conducted this test for 12 years. An ance increases productivity and may reduce workers' estimate of the failure rate was not available. Sam- compensation costs. However, physical ability testing Trans requires the test before the conditional offer to may disproportionately screen out women, as well as ensure that a job applicant does not leave another job disabled individuals and individuals age 40 and over. only to find out that he or she is unable to safely oper- Determining whether this sort of disparate impact oc- ate the bus. curs generally requires a statistical analysis. If the agency purchases an existing test from a vendor, the VI. STRUCTURING PHYSICAL ABILITY TESTING vendor's documentation of validity is helpful, but does POLICIES not relieve the transit agency of the legal responsibility for ensuring the test is valid. Courts will generally scru- Properly configured and administered physical abil- tinize test validation performed in anticipation of litiga- ity tests may reduce a transit agency's exposure to risk tion with great care due to the possible lack of objectiv- by lowering on-the-job injuries and avoiding accidents ity. 554 caused by personnel who are not physically capable of Where such disparate impact occurs, the transit performing their job requirements.552 In addition, rely- agency must be able to show that the test is job related ing on the results of such tests in the recruitment proc- and consistent with business necessity. (The precise ess may deter legally risky practices such as reviewing standard that would be applied in case of litigation de- an applicant's workers' compensation records as a pends on the transit agency's jurisdiction, but the most screening mechanism. On the other hand, transit agen- conservative approach regardless of jurisdiction would cies may be subject to liability for implementing dis- be to design physical ability tests with the intent to comply with the Lanning standard of evaluating the 551 The summary is based on a Dec. 10, 2009, telephone con- minimum qualifications necessary for the successful versation with Monica Colondres, Human Resource Director, performance of the job in question.) Moreover, if there SamTrans. is a less discriminatory procedure that would produce 552 For example, if a bus operator is not physically capable of properly securing a wheelchair on the bus, the improperly se- 553 cured wheelchair could result in injury to the wheelchair's See generally, EEOC Employment Tests and Selection occupant or another passenger. In addition to any liability Procedures, resulting from physical injury in such an incident, the transit 554 agency could face additional liability for hiring an unqualified Albemarle Paper Co. v. Moody, 422 U.S. 405, 433 n.32, 95 operator. S. Ct. 2362, 2379, 45 L. Ed. 2d 280, 305 (1975).