Test Defensibility
Most agencies do not adopt tests and standards with the goal of discriminating against one group or another, thereby inviting challenge; they make best faith efforts to comply with legislated mandates while selecting and retaining qualified candidates. However, chiefs and others, often guided by the opinions of others, make decisions with the primary goal of avoiding challenge, even at the cost of ensuring mission readiness.
Employers should know: It is commonly assumed any test and standard (selection procedure) that has disparate impact is illegal. In the presence of disparate impact, the agency must demonstrate the procedure is demonstrably job-related for the position in question and consistent with business necessity (Section 105, Civil Rights Act of 1991). The agency must show, one, the requirement is associated with skills needed to safely and effectively perform the job or required job-tasks, and two, performance is necessary to meet the goals of the business.
The presence of disparate impact does not render a procedure unlawful. If the standard is job-related, then it can be utilized even if it results in disparate impact. An appeals judgment (USDOJ v. SEPTA, U.S. Court of Appeals, 3rd Cir. 2000) for the Lanning et. al. vs. SEPTA case ruled that an absolute single standard resulting in disparate impact was valid and allowed to stand because the data demonstrated job relatedness and consistency with business necessity and that no suitable alternative test with less impact was available.
In the Lanning Case, the defendant provided validity evidence to support the standard once disparate impact was established. In this case, as in others, it is assumed the inherent physiological differences between men and women are the source of the disparate impact. However, in the presence of validity evidence which documents the physical demands of the job and links the test and standard to the job, it is the job itself that is the source of the disparate impact. (SOAR, p.205)
FitForce Position: If the agency can show that the physical readiness standard is “job related” and “consistent with business necessity,” it can legally defend the standard. The standards must be developed in a valid manner to demonstrate job-relatedness and to predict physical readiness; in our view, the agency demonstrates business necessity by consistently and predictably enforcing policies and procedures which ensure career-span physical readiness. Thereby maximizing the likelihood of successful defense, should the need arise.