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65 iors that are the cause of injury. This should include an Even if not tested, are incumbent employees required independent job analysis to verify that the work behav- to meet the test standards? iors being tested are required for successfully perform- Are incumbent employees who are unable to pass the ing the job without injury. test nonetheless able to perform successfully? Timing of test administration: If physical ability tests are conducted before a conditional offer of em- C. More Is Not Necessarily Better ployment is extended, care should be taken not to in- A perhaps intuitive, but ultimately perilous, ap- clude any medical procedures such as taking the appli- proach to physical ability testing is the idea that if a cant's blood pressure or asking any questions related to particular requirement is necessary, exceeding that disability or likely to elicit information related to dis- requirement will result in better employees: "more is ability. For example, it is not acceptable, at the pre- better." Scenarios in which such an approach could be offer stage, to ask an applicant if there are any reasons adopted include strength testing, CDL requirements for that the applicant cannot perform the required tasks as vision and hearing, and drug testing. In each scenario, opposed to asking whether the applicant can perform "more is better" may unnecessarily, and perhaps ille- the required tasks. gally, reduce the pool of applicants or employees. Reasonable accommodation: If an individual with a Rather than using a "more is better" approach, physical disability requires a reasonable accommodation to take ability testing should be tied to the content of the essen- a physical ability test, accommodation should be pro- tial functions of the job or to criteria that are related to vided unless the ability being tested is the one for which successful performance of the essential functions of the accommodation would be required. job. Effect on workforce development: While not a legal Strength Testing.--Rationale: Since strength is re- issue, the effect on workforce development is obviously quired to operate a particular piece of equipment, a consideration. DART, for example, conducted a pilot stronger employees would do a better job. Based on that program under which 130 bus/rail operators were given assumption, the manager might argue for a stringent physical abilities tests at the same time as their peri- strength test to get "better" employees. Flaw: Such a odic physical exam. Three employees could not perform test might screen out employees--including women, or finish walking for 750 ft on the treadmill, and one of disabled individuals, or individuals age 40 years or those three could not kneel. DART did not implement older--who could manage the equipment in question the testing program.562 and otherwise perform essential job functions. In evaluating a physical ability test under considera- CDL Vision and Hearing Requirements.--Rationale: tion, questions to consider include the following: Physically superior individuals will make better em- ployees, CDL physical requirements should be imposed What is the relationship between the physical ability on other employees, or vision and hearing standards test and actual job requirements?563 This question is stricter than CDL requirements should be imposed. easiest to answer when the test simulates actual job Flaw: Federal standards have been upheld based on requirements. procedures under which they were adopted and job re- Is the skill being tested "necessary for safe and effi- latedness of the requirements. Standards in excess of cient job performance"? Does the test itself accurately federal standards are likely to be upheld in the face of 564 measure the needed skill? ADA challenges only upon showing that safety required Alternatively, does the physical ability test closely exceeding the federal standards or extending the stan- approximate actual job tasks? ("job related") dards to other employees. Does the physical ability test measure actual content Drug Testing.--Rationale: In order to ensure a drug- of the job itself? ("job related") free workplace, drug testing should go beyond that re- Is there a rational need to perform the task being quired by USDOT, including random testing of employ- tested? ("business necessity") ees who are not in safety-sensitive positions. Flaw: The Does the test inadvertently screen out qualified appli- legal rationale for suspicionless drug testing is tied to a cants? balancing of interests: the compelling governmental Is there an arbitrary cutoff score that has no rational interest in conducting the test against the employee's relation to job needs? privacy interests. A key factor in finding that the gov- Is there an arbitrary cutoff score that can be posi- ernment interest is compelling is that the job function tively demonstrated to be needlessly high? in question involves safety or some other position of trust such as dealing with illicit narcotics. Extending 562 random drug testing to employees in nonsensitive posi- Response to TCRP Questionnaire, Question VIII, Pro- tions would be unlikely to pass constitutional muster. gram Effectiveness. 563 In addition, transit agency drug testing should not be See David E. Hollar, Physical Ability Tests and Title VII, 565 coordinated with law enforcement agencies. 67 U. CHI. L. REV. 79496 (2000) (suggesting two-prong test: skill sought to be measured by employment test is consistent with business necessity and test itself is clearly job related by 565 See Ferguson v. City of Charleston, 532 U.S. 67, 84, 121 closely approximating an on-the-job task). S. Ct. 1281, 1292, 149 L. Ed. 2d 205, 220 (2001) (holding un- 564 See id. at 802. constitutional a drug testing scheme to test expectant mothers