For jobs with heavy physical demands, employers commonly use assessment tests to determine whether the employee can safely perform the job duties. These tests attempt to simulate the physical tasks called for during actual performance of the job. Over the past several decades, women have challenged these tests under Title VII, contending that they unfairly discriminate on the basis of gender. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina), reversed a grant of summary judgment for a trucking company accused of excluding a female driver through use of an agility test.

In Merritt v. Old Dominion Freight Line, Inc., the plaintiff was a female line haul driver who transferred into a local delivery job. After injuring her ankle on the job, Old Dominion required her to pass an agility test as a condition of returning to work. When she failed the test, her employment was terminated, and the driver sued, claiming sex discrimination under Title VII.

The Fourth Circuit found that there was ample evidence of possible discrimination to allow the claim to proceed to a jury for trial. This evidence included:

• The employer only had six females out of 3000 delivery drivers
• The ankle injury was minor, and healed without complications, raising questions as to why the test was necessary
• The employer only periodically required the agility tests. There was no regular use of this test for male employees returning from medical leave
• The test measured capacity well beyond ankle strength

Although circumstantial in nature, these factors raised legitimate questions over the employer's motivation in terminating the plaintiff based on the agility test results. This case does not mean that employers should abandon use of similar capacity tests where appropriate. Such tests can be valuable screening devices, but need to be carefully developed and implemented . The test should be designed to closely simulate actual job performance. It should be administered according to a policy, and on a consistent basis. Employees with disabilities should not be excluded from the job based on test results until a reasonable accommodation analysis has been performed.