CSX Transportation to pay $3.2M to settle EEOC disparate impact suit over pre-employment testing
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Friday, June 15, 2018

CSX Transportation to pay $3.2M to settle EEOC disparate impact suit over pre-employment testing

CSX Transportation, Inc. (CSXT), one of the nation’s leading transportation suppliers, will pay $3.2 million and furnish other relief to settle a companywide sex discrimination lawsuit filed by the EEOC, the federal agency announced on June 13.

Pre-hire tests. According to the EEOC, CSXT conducted isokinetic strength testing as a requirement for workers to be hired for various jobs. The EEOC said that the strength test used by CSXT, known as the “IPCS Biodex” test, caused an unlawful discriminatory impact on female workers seeking jobs as conductors, material handler/clerks, and a number of other job categories. The EEOC also charged that CSXT used two other employment tests, a three-minute step test seeking to measure aerobic capacity and a discontinued arm endurance test, as a requirement for selection into certain jobs, and that those tests also caused an unlawful discriminatory effect on female workers.

Title VII prohibits employment discrimination based on sex, including the use of tests that are administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex or any other demographic category. Employers using such tests must prove those practices are necessary for safe and efficient performance of the specific jobs for which the tests are used. Even if this necessity is proven, such tests are prohibited by Title VII if it is shown that there are alternative practices that can achieve the employers’ objectives but have a less discriminatory effect.

The EEOC did not allege any intentional discrimination by CSXT in this case.

Consent decree. The EEOC and CSXT agreed to settle the EEOC’s disparate impact claims before any ruling by the court in the federal suit. The consent decree settling the lawsuit, which has received court approval, requires CSXT to cease the physical abilities testing practices that the EEOC charged were causing a disparate impact against female workers. The decree also requires CSXT to pay $3.2 million into a settlement fund to pay lost wages and benefits to a class of women in over 20 states who were denied positions because of the testing. Under the decree, CSXT must also retain expert consultants to conduct scientific studies before adopting certain types of physical abilities testing programs for use in its hiring.

“We commend CSX Transportation for working collaboratively with the EEOC to address our concerns about the railroad’s physical abilities testing program,” said EEOC Regional Attorney Debra M. Lawrence. “The company’s willingness to confer with the EEOC about the agency’s concerns and its agreement to cease the testing practices at issue reflect a corporate commitment to gender diversity and inclusion that will benefit both workers and the company.”

Pre-employment testing an enforcement priority. Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and persons with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

“The EEOC will continue to carefully examine employer testing and screening practices to identify those that operate as systemic barriers to employment based on protected characteristics,” said Jamie R. Williamson, EEOC District Director. “Workers who believe they are being subjected to the discriminatory effects of such practices should bring them to the attention of the EEOC.”

The EEOC originally filed its lawsuit, EEOC v. CSX Transportation, Inc. (No. 3:17-cv-03731), in a federal district court in West Virginia. The suit was commenced in August 2017.

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