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Railroad subjected class of female workers to unlawful physical abilities testing, federal agency charges

HUNTINGTON, W.Va. – CSX Transportation, Inc., a provider of rail-based transportation services with operations throughout the eastern half of the United States, violated federal law by implementing a physical abilities test battery that causes a class-wide disparate impact on female workers seeking a range of jobs at CSX, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Aug. 2.
According to the EEOC’s lawsuit, since at least 2008, CSX has conducted isokinetic strength testing as a requirement for workers to be selected for various jobs. The EEOC said that the strength test, known as the IPCS Biodex, causes a discriminatory impact on female workers seeking jobs as conductor, material handler/clerk, and a number of other job categories. CSX purports to use the IPCS Biodex to measure upper- and lower-body muscle strength. The EEOC charges that female workers who have taken the test pass at significantly lower rates as compared to their male counterparts.
The EEOC also said that CSX has used two other employment tests, one purporting to measure aerobic capacity and one seeking to test arm endurance, as a requirement for selection into certain jobs, and female workers also passed those tests at significantly lower rates as compared to male workers.
According to the EEOC’s complaint, CSX declined to hire a class of women workers for a range of jobs they sought because they failed these tests, and the effect of company testing practices has been to discriminate against women workers because of their sex.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrim­ination based on sex. Title VII prohibits employment practices such as tests that are administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex. Employers using tests for employment selection purposes that cause a significant discriminatory effect or impact based on sex, or any other covered basis, must prove that those practices are necessary for safe and efficient performance of the specific jobs for which the tests are used. Even if such necessity is proven, such tests are prohibited by Title VII if it is shown that there are alternative practices that can achieve the employers’ objectives but have a less discriminatory effect.
The EEOC filed suit (U.S. EEOC v. CSX Transportation, Inc. Case No. 3:17-cv-03731) in U.S. District Court for the Southern District of West Virginia in Huntington after first attempting to reach a pre-litiga­tion settlement through its adminis­trative conciliation process. The agency’s lawsuit seeks injunctive relief and court-ordered job instatement as well as payment of monetary remedies in the form of past and future lost wages and benefits to the class of female workers adversely affected by CSX’s testing.
“The EEOC has prioritized enforcement actions to eliminate discriminatory barriers to the employ­ment of women and other workers,” said EEOC Regional Attorney Debra M. Lawrence. “Therefore, employers should carefully examine their employ­ment practices, such as tests and other selection procedures, to make certain that those practices are not causing an unlawful disparate impact because of sex or another covered demographic category.”
EEOC District Director Spencer H. Lewis, Jr. added, “The EEOC will take vigorous action if an employer’s selection procedure has an adverse impact on women or members of any other demographic group. Companies must refrain from using a test causing adverse impact unless it is job-related and consistent with business necessity. Even if a test passes that standard, an employer must adopt any comparably effective alternative practices that have less adverse impact.”
Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.
The lawsuit was commenced by the EEOC’s Pittsburgh Area Office, one of four component offices of the agency’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.
According to company information, CSX Corporation, together with its subsidiaries based in Jacksonville, Fla., is one of the nation’s leading transportation suppliers, encompassing about 21,000 route miles of track in 23 states, the District of Columbia and the Canadian provinces of Ontario and Quebec.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

Federal Agency Charged Railroad Company Refused to Hire Qualified Machinist Due to Epilepsy

eeoc-logoSEATTLE — The Washington, D.C.-based National Passenger Railroad Corporation, better known as Amtrak, will pay $112,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

According to EEOC’s suit, Amtrak withdrew its job offer of machinist journeyman at its Seattle yard when it learned Shawn Moe had a history of three epileptic seizures over the course of his life. Amtrak cited safety concerns, despite Moe’s record of safely working a similar job and despite his neurologist verifying to Amtrak that his epilepsy was successfully controlled on medication, that he had been seizure-free for years, and that he was able to safely perform the essential functions of the job without limitation while on medication.

“The fact that I have epilepsy has never prevented me from safely doing my job, not in the years I worked for another locomotive company before I applied to Amtrak, and not at the railroad machinist job I found after Amtrak took back its job offer,” said Moe. “Amtrak’s decision to withdraw its offer hit my family at a particularly vulnerable time because my wife and I just had our first baby. I thought, what if other employers react as Amtrak did and I can no longer practice my trade? How would I support my family?”

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against an employee because of his disability, and also requires an employer to assess a worker’s actual ability to perform job functions where potential safety concerns are raised. EEOC filed suit in U.S. District Court for the Western District of Washington [Case No. 2:15-cv-01269] after first attempting to reach a pre-litigation settlement through its conciliation process.

The three-year consent decree settling the lawsuit provides $112,000 to Moe in lost wages and compensatory damages. The decree also requires Amtrak to train its staff on hiring obligations and assessing reasonable accommodations under the ADA. Amtrak will also implement and disseminate a modified ADA policy, and will post a notice for employees about the consent decree and employees’ rights under the ADA.

EEOC Senior Trial Attorney May Che said, “Amtrak concluded that Mr. Moe presented a significant safety risk without assessing the actual likelihood of him having a seizure at all. In enacting the ADA, Congress stated that employers must rely on objective, factual evidence — not on subjective perceptions, irrational fears, and patronizing attitudes — about the nature or effect of a particular disability, or of disability generally.”

EEOC Seattle Field Director Nancy Sienko added, “One out of every 26 people will develop epilepsy at some point in their lives. Given that epilepsy reportedly affects 2.2 million Americans and affects each person differently, it is critical that employers do not base job decisions on stereotypes, but instead carefully consider an employee’s abilities.”

According to publicly available information and its website, www.amtrak.com, Amtrak is a publicly funded service, operated and managed as a for-profit corporation with headquartered in Washington, D.C. In fiscal year 2015, Amtrak served over 30.8 million passengers and had $3.2 billion in revenue, while employing more than 20,000 people nationwide.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at www.eeoc.gov.

eeoc-logoCompany refused to allow employee with disability to return to work after treatment, federal agency charges

ATLANTA – A Norfolk, Va.-based railway company unlawfully discriminated against an employee because of his disability, degenerative disc disorder, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Sept. 23 in Atlanta.

According to the EEOC’s suit, Norfolk Southern Railway Company violated federal law by not allowing a laborer to return to work after receiving treatment for his disability and being cleared by his treating physician to return to work with no restrictions.

According to the EEOC’s complaint, Norfolk Southern’s medical director disregarded the treating physician’s opinion as to the employee’s ability to work and determined he was medically disqualified from working without ever examining him. Norfolk Southern subsequently terminated the employee.

Disability discrimination violates the Americans with Disabilities Act (ADA), which requires employers to not discriminate against employees with disabilities or a record of a disability. In addition, employers who perceive employees as disabled when they are not disabled also violate the ADA. The EEOC filed suit (EEOC v. Norfolk Southern Railway Company, Civil Action No. 1:13-cv-03126) in U.S. District Court for the Northern District of Georgia, Atlanta Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking reinstatement, back pay and compensatory and punitive damages for the employee, as well as injunctive relief designed to prevent future discrimination.

“An employer cannot terminate an employee because of a disability, or merely because it perceives that person to be disabled,” said Robert Dawkins, regional attorney for the EEOC’s Atlanta District Office. “Here, the employee was ready, willing and able to work, but was fired based on preconceived notions about his abilities. Such conduct violates the ADA.”

Bernice Williams-Kimbrough, district director of the Atlanta office, said, “The EEOC is committed to stopping workplace disability discrimination in Georgia and across the country. Given the size of the employer, this lawsuit could assist in protecting the rights a large number of employees.”

The Atlanta District Office of the EEOC oversees Georgia and parts of South Carolina.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

After BNSF announced it would demand highly personal information from employees relating to off-duty medical procedures and issues, the UTU and the Sheet Metal Workers International Association (SMWIA) asked the Equal Employment Opportunity Commission (EEOC) to investigate.

The proposed new carrier rule, said the UTU and SMWIA, is discriminatory and violates federal law by requiring workers to provide highly personal medical information.

Within days, BNSF rescinded the policy rather than face an EEOC investigation.

As the UTU and SMWIA documented in its complaint to the EEOC, BNSF had no statutory right to view the information – that its proposed rule was in violation of the Americans with Disabilities Act, the Genetic Information Nondisclosure Act, the Civil Rights Act and the Pregnancy Discrimination Act by requiring that employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries.

“Each day that BNSF’s policy remains in effect, more employees face the likelihood of having their statutory rights violated,” the UTU and SMWIA told the EEOC.

“And once an employee’s rights are violated – that is, once BNSF has been notified of the away-from-work medical condition or event and has obtained the employee’s statutorily-protected medical information – there is no way to undo the violation,” the UTU and SMWIA told the EEOC.

Additionally, said the UTU and SMWIA, the medical information that BNSF sought was likely to reveal a disability that is neither job related nor consistent with business necessity, and is likely to result in BNSF obtaining genetic information.
 
Moreover, the proposed BNSF rule would have discriminated against women affected by pregnancy and/or related medical conditions, the UTU and SMWIA told the EEOC.

Other labor organizations filed similar complaints with the EEOC.

On behalf of members employed by BNSF, the UTU and the Sheet Metal Workers International Association (SMWIA) have asked the Equal Employment Opportunity Commission (EEOC) to investigate the railroad’s new medical reporting policy, which the organizations say is discriminatory and violates federal law by requiring workers to provide highly personal medical information.

BNSF is demanding employees report off-duty medical procedures and issues. This highly personal information is protected, and BNSF has no statutory right to view the information, the UTU and SMWIA said in  their complaints.

The discrimination complaints filed with the EEOC allege BNSF is in violation of the Americans with Disabilities Act, the Genetic Information Nondisclosure Act, the Civil Rights Act and the Pregnancy Discrimination Act by requiring, since Jan. 1, 2012, that employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries.

“Each day that BNSF’s policy remains in effect, more employees face the likelihood of having their statutory rights violated,” the UTU and SMWIA told the EEOC. “And once an employee’s rights are violated – that is, once BNSF has been notified of the away-from-work medication condition or event and has obtained the employee’s statutorily-protected medical information – there is no way to undo the violation.”

Additionally, said the UTU and SMWIA in their complaint, the medical information that BNSF requires employees to provide is information likely to reveal a disability and is neither job related nor consistent with business necessity, and is likely to result in BNSF obtaining genetic information. Moreover, the BNSF policy discriminates against women affected by pregnancy and/or related medical conditions.

Other labor organizations have filed a similar complaint with the EEOC.