The Equal Employment Opportunity Commission is cracking down on pre-employment physical ability tests (PATs) when they result in the rejection of a disparate number of female applicants.

EEOC accused Hirschbach Motor Lines of doing this through its pre-employment back assessment designed to screen out applicants it believed wouldn’t be able to work as truck drivers. Applicants were asked to stand on one leg, touch their toes while standing on one leg, and to crawl.

The test was used to screen out applicants with pre-existing injuries or medical conditions after already making a conditional employment offer.

Hirschbach eventually paid $3.2 million to female applicants. Earlier this year physical ability testing required by a police department resulted in a nearly $2.5 million settlement with female applicants.

“If a PAT has a disparate impact – for example if women fail the PAT at a statistically significantly higher rate than men – an employer has the burden of demonstrating that use of the PAT is job related and consistent with business necessity,” explain attorneys Mallory Stumpf and Sarah Smith Kuehnel of the Ogletree Deakins law firm.

They say employers must take formal steps to make sure any PAT they use is properly validated and is truly testing physical abilities really needed on the job. This can begin with a professional job analyst documenting physical tasks necessary for the job.

It also can come from consultation with the appropriate employee safety experts and should include measurements of frequency, weight, duration, tools and distances involved in performing physical job tasks, the attorneys recommend.

“Establishing business necessity is a high standard that requires proof that the test has been validated specifically for the employer and is predictive of an individual’s ability to perform essential physical job tasks,” Stumpf and Kuehnel say, stressing that employers should periodically revalidate PATs to ensure they still measure only necessary job skills.