Executive Summary: Employers want to hire the best candidates for their job. However, in utilizing certain hiring standards, employers may be having a “disparate impact” that inadvertently discriminates against certain protected groups. The Connecticut General Assembly is presently considering a law that would allow women to be exempt from the Candidate Physical Ability Test, the standard used by fire departments across the country. The test, which only approximately 15 percent of women pass, requires candidates to complete intense physical tasks while wearing a 50-pound vest. It is designed to simulate the experience of navigating a fire in heavy gear and identify whether a candidate is capable of performing the essential job functions. The General Assembly is considering an alternative test based on “revised physical standards” to allow for “additional female candidates” to qualify for firefighter positions.
Some firefighters, including women, say the bill will be the demise of merit-based hiring and could potentially endanger Connecticut residents. Beyond potentially putting lives at risk, opponents of the bill suggest that the law will exacerbate suspicions common among male firefighters that women are not up for the job. By lowering the hiring standards, people may think that a woman was hired because of her gender and not her abilities.
This is not the first merit-based dispute between firefighters and the Connecticut government. In 2003, the New Haven fire department threw out the results of a written exam after all of the Black firefighters who took it did not score high enough for promotion. Frank Ricci, the former union president, who would have been promoted based on his results, sued the department, arguing that he and other non-Black firefighters have been denied professional opportunities because of their race. The state Supreme Court agreed, ruling 5-4, that New Haven had violated anti-discrimination law.
Fire departments have nonetheless faced pressure to omit written and physical tests – often when women perform poorly. In 2011, the Chicago Fire Department was hit with a class action lawsuit over its physical abilities test, which was more complex than most departments' national Candidate Physical Ability Test. The complaint alleged that Chicago’s test discriminated against women because so few could pass it. The department eventually settled and offered jobs to women rejected under the old standard.
Merit-based hiring is also under scrutiny in other professions. In 2020, President Trump signed an executive order directing the federal government to decrease emphasis on whether a job candidate has a college degree, and to increase valuation of an applicant’s job skills and life experiences. In 2022, the U.S. Army modified its physical fitness standards for women and soldiers over a specific age. Similarly, the Navy updated its standards regarding an applicant’s body weight, Qualification Test score, age, and criminal background.
As the technology industry exponentially grows, it utilizes merit-based hiring to help recruiters filter large pools of applicants and find the right talent. Tech companies use several tools to assess applicants’ merit, including resume checks, competitive exams, and skill-based assessment tests.
How does this affect your business?
Lawsuits for disparate impact (policy discrimination) are on the rise. Accordingly, employers and HR professionals need to have a good understanding of potentially discriminatory employment practices and how to avoid them. Employers should have clear policies for all stages of the employee lifecycle – hiring, promotions, separations, and managing performance. Review for potential discriminatory impact and update your policies as needed. Consult legal counsel if you are unsure whether your policies might have a disparate impact.
Bottom Line:
Finally, when hiring, it is essential not to blindly rely on historic standards, but to consider quantitative methodology when selecting candidates to ensure an inclusive environment. Regardless of whether the evaluation of candidates is based on quantitative or qualitative methods, be sure to understand how a candidate can contribute to your business.
If you have any questions regarding this Alert, please contact the author, Michael P. Lewis, an attorney in our Hartford office at mplewis@fordharrison.com or the FordHarrison attorney with whom you usually work.