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Going On Looks Alone

By: Jim Briggs OTR (Ret.)

January 24, 2019 

If you are hiring based on how someone looks you may be discriminating. Obviously, no professional would hire someone just because of the way they looked or based on their age unless they were hiring models or actors. Do you look at the application to decide who to interview? Sure you do. In doing so you are creating a mental image of what that person has to offer. When beginning the interview process you take note of a person’s “appearance” and “business demeanor” relative to the job they are seeking. Obviously a customer service representative will need a certain amount of politeness combined with the ability to steer the conversation to a satisfactory outcome for both you and your customer. This may be as much an art as a skill.

Abercrombie and Fitch have had two decisions, relative to the subject of this article, go against them in the courts. Abercrombie decided they wanted to project a “certain” image in their stores but in 2005, the U.S. District Court of Northern California granted a $50,000,000 settlement to Latin American, African American, Asian American and female applicants and employees who charged the company with discrimination. The latest widely publicized case resulted in a ruling from the US Supreme Court regarding the Hijab (Muslim head dress) worn by a female applicant during an interview which resulted in the retailer not hiring her due to what they cited as a “dress code violation”. This is not an article about Abercrombie but I use their cases to bring to light a long standing bias when hiring, which is, either they do or do not look like the person you may want for a particular job.

You wouldn’t necessarily hire the customer service applicant to perform the jobs that are physical in nature and require strength, endurance and agility, just because they demonstrated the skill set to be a good customer service representative. Or, would you? After all, they have already proven themselves. But, are you putting them at risk or are you refusing to move them because you don’t think they can perform jobs that require strength, endurance and agility because that don’t look the part.

The study below represents 4,311 applicants for jobs that would be considered in general terms to be heavy physical demand. You can see a direct correlation between pass/fail rates and BMI but BMI is not an appropriate indicator as to a person’s ability to perform the work. This is obvious due to the number of overweight up to morbid obesity that demonstrated, during a job specific physical ability test, that they can indeed perform the essential physical demands of the job.

 

Passed  Failed
Women Men TL % Women Men TL %
Under Weight     4 64 68 .0157 0 2 2 .0004
Normal 37 1067 1104 .2560 25 76 101 .0234
Overweight 44 1179 1223 .2836 37 230 267 .0619
Grade 1 obesity     27 636 663 .1537 24 220 244 .0565
Grade 2 obesity     13 252 265 .0614 11 110 121 .0280
Morbid obesity     6 129 135 .0313 10 108 118 .0273
131 3327 3458 80% 107 746 853 20%

 

The courts may be right by taking away the discretion of the employer to hire based on appearance or age. As shown in the chart above roughly 1/3 of the qualified applicants, (Grade 1, 2 and morbid obese) that demonstrated they could perform the work, may not have been hired due to their unfit appearance. Also, notice that the underweight performers performed at a very high pass to fail ratio with only 2 out of 70 failing the test.

So are you going to read this article and say that you have never hired one person over another because one was a better fit “physically” than another?

In reality, many factors go into the risk assessment. Has the applicant already conditioned to your job because they were performing similar work for another employer? Are they at higher risk for injury because of the work they performed for another employer? Let’s not forget age. Yes, the older we are the easier it is to suffer an injury and the recovery time is often longer. So what can we do to minimize the risk?

A properly validated job specific physical ability test is an objective way to determine if a person has the physical capability to perform the physical demands of the job regardless of appearance, age or sex.

The table below represents “Injuries per hours worked” of employees that passed the test verses employees that failed the test. To arrive at the data in the table below, employees were tested in three distribution areas, Food, Soft Drink and Retail. All of the applicants were tested for strength, endurance and postural agility. For purposes of the study all of the applicants were employed regardless of passing or failing the physical ability test. These employees were tracked over their period of employment up to one year.

 

 

Injury Rates By Pass/Fail Status – Predictive Validation Studies

Fail Pass
Number of Injuries Hours Worked Injury Rate Number of Injuries Hours Worked Injury Rate
Food Dist’n 9 19,304 93.24 40 194,059 41.22
Soft Drink Dist’n 1 1,314 152.25 17 57,109 59.53
Retail Dist’n 35 70,996 98.60 41 125,667 65.25
Overall 45 91,614 98.24 98 376,835 52.01


As you can see in the table the injury rate for those deemed to fail the test were much more significant than for those who passed the test.

This leaves us at a fork in the road. Do we guess whether or not a person is physically capable of performing a job or do we test them? Statistically speaking, it makes since to use a physical ability test. But, not all tests are created equal and not all jobs warrant a physical ability test.


The ADA, as ruled in Indergard v Georgia Pacific, requires a test to be a medical exam, thus given post offer if it meets any one of the criteria below.

In making its finding, the court applied the EEOC interpretative guidelines, which list the following seven factors:

  1. Whether the test is administered by a health care professional
  2. Whether the test is interpreted by a health care professional
  3. Whether the test is designed to reveal an impairment of physical or mental health
  4. Whether the test is invasive
  5. Whether the test measures an employee’s performance of a task or measures his/her physiological response to performing the task
  6. Whether the test normally is given in a medical setting
  7. Whether medical equipment is used


The EEOC’s guidelines state that just one of items above may be enough to determine that a test or procedure is a medical exam.

Post offer physical ability test that are considered medical tests for new hires and return to work are both legal and effective for employment selection decisions so long as the tests are job specific. In other words, do not turn an agility test into a medical examination, and do not use a test as part of a medical exam if it is not job specific.

Agility test or work simulation test can be administered by supervisorial or other nonmedical employees. These tests monitor an employees’ ability to perform a job’s essential physical requirements, such as lifting or other “job task simulations”. But do you really want to administer an agility test? Several issues can arise with this type of test.

First, is there consistency in test administration? In other words is every test given in the same manner and scored the same at each location by each test administrator? Health professionals are trained to administer tests in an objective and reliable manner. If the health professional is external to the organization, there is even less potential for bias in test administration and scoring.

Second, when administering an agility test, the test administrator cannot ask any medical history questions and cannot take any physiological measurements such as heart rate or blood pressure. Any one of these would deem the test to be a “Medical Test”. Hence, the test administrator does not know if it is safe for this person to take the test. Who do you think is liable if a person is injured as a result of your test?

Third, you can only observe “job task simulations” such as lifting or walking etc. Performing these tasks without benefit of taking heart rate information only tells the test administrator if the person can perform that task one time, not if the person can perform the task multiple times over an extended period. In other words, agility tests are often not particularly effective for evaluating an individual’s ability to perform a job that has a significant energy expenditure requirement and thus would not necessarily identify an individual who would not be able to repeatedly perform essential job demands over the course of a shift.

To test for endurance, the test results would need to represent a quantified requirement of that specific job, and the test would need to be predictive of some important aspect of job performance.

So here we are at the cross roads. Do we go on looks alone? Do we use a less effective agility test? Or, do you use a validated post offer physical ability test for the best ROI? The decision is yours.

 

Source: 

www.eeoc.gov/policy/docs/guidance-inquiries.html