Labor & Employment Law Daily Walmart would pay $20M to end EEOC allegations that physical abilities test discriminated against female applicants
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Thursday, August 6, 2020

Walmart would pay $20M to end EEOC allegations that physical abilities test discriminated against female applicants

By Pamela Wolf, J.D.

Walmart would be enjoined for five years from administering or implementing any physical ability testing for purposes of hiring grocery distribution center order-fillers.

Under a proposed consent decree, Walmart, Inc., would pay $20,000,000 to resolve allegations that the retail giant ran afoul of Title VII when it used a physical abilities test (PAT) at its grocery distribution centers nationwide that had a disparate impact on female order-filler applicants. The settlement would resolve a simultaneously filed complaint and two EEOC charges.

Walmart denies any violation with respect to its use of the physical abilities test and the hiring of grocery order-filler applicants.

PAT requirements. According to the complaint, since at least 2010, Walmart has subjected two complainants and a nationwide class of aggrieved female grocery order-filler applicants to a physical ability test that has a disparate impact on female applicants and resulted in them being denied employment opportunities because of their sex.

Specifically, Walmart has allegedly used a selection procedure that requires grocery order-filler applicants to achieve a competitive score on the PAT, with a score of 792.8 or higher deemed competitive. Purportedly, applicants who failed to achieve a competitive score on the PAT cannot be hired as a grocery order-filler and are barred from reapplying for the position for six months.

Disparate impact and not job-related. The PAT has a disparate impact on female grocery order-filler applicants, according to the EEOC. Further, it is allegedly not job-related for the position in question and consistent with business necessity. Because of its PAT-related practices, Walmart purportedly refused to hire two complainants and a nationwide class of female grocery order-filler applicants because of their sex. The effect of these employment practices has been to deprive the two complainants and the nationwide class of female applicants for the position equal employment opportunities and to otherwise adversely affect their status as applicants because their sex.

More about the settlement. If approved by the court, the proposed consent decree would apply to all currently existing Walmart grocery distribution centers, those that may come into existence during the term of the decree, and those that no longer exist, but did exist any time between 2010 and the effective date of the decree.

In addition to the monetary relief, Walmart would be required to stop using all physical ability testing currently used for purposes of hiring grocery distribution center order-fillers no later than 120 days after the effective date of the consent decree. For five years, Walmart would be enjoined from administering or implementing any physical ability testing for purposes of hiring grocery distribution center order-fillers.

Walmart also would be required to provide training and be subject to monitoring and reporting requirements.

The EEOC filed its lawsuit in the Eastern District of Kentucky, London Division; the case is No. 6:20-cv-00163-KKC.

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