To land a job at CSX Transportation Inc. meant in some instances a test of strength: upper arms and lower body power, a three-minute aerobic capacity test and “arm endurance.” Physical tests for jobs that require manual labor can require employers to strike a balance between the promotion of safety and avoidance of discrimination.

The strength-testing practice by CSX, the Florida-based rail transportation company, came under fire last year by the U.S. Equal Employment Opportunity Commission, which claimed in a lawsuit that women applying for jobs as freight conductors, track and utility workers and other jobs passed the tests at a significantly lower rate than men.

CSX on Tuesday agreed to pay $3.2 million to end the lawsuit and to stop two common tests the company had used to hire and promote its employees. The EEOC suit, filed in the Southern District of West Virginia federal court, alleged classwide disparate impact claims for as many as 13,000 female workers.

CSX, represented by teams from Jones Day and Nelson Mullins, denied wrongdoing in the consent decree. Lawyers for the company were not immediately reached for comment Wednesday.

CSX, one of the largest transportation services providers in the country, said in court papers last year that its physical capabilities testing was “consistent with business necessity” and was used for the “most strenuous and safety-sensitive positions.”

According to the EEOC's lawsuit, CSX had conducted isokinetic strength testing as a requirement for workers to be selected for various jobs since 2008. The test, called “IPCS Biodex,” measures upper- and lower-body strength. Male candidates achieved higher passage rates than female candidates on a range of tests, according to the EEOC's complaint. For example, in one test measuring upper- and lower-body strength, men passed 87 percent of the time compared to female candidates who passed at a rate of 30 percent. In another, 94 percent of men passed, compared to 47 percent of women.

“We commend CSX Transportation for working collaboratively with the EEOC to address our concerns about the railroad's physical abilities testing program,” EEOC regional attorney Debra Lawrence said in a statement. “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.”

The EECO has long targeted such physical tests as potentially discriminatory. EEOC guidelines for physical strength tests say they must be job-related and “consistent with business necessity.”

A federal appeals court in 2005 upheld a ruling against Dial Corp. over the company's pre-employment strength tests. Attorneys for Dial had argued the test resulted in fewer injuries to hired workers. The EEOC said the test was more difficult than the job required and the reduction in injuries was more likely based on other reasons.

 

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