Incumbent Physical Ability Testing

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  • 1. Maintaining Physical Standards Using Physical Ability Tests: Are Your IncumbentsFitfor the Job? August 26, 2011 Dan Biddle, PhD Stacy L. Bell, MS Alisa Arnoff, Esq.

2. About the Speakers

  • Dan Biddle, PhDPresident/CEO of Fire & Police Selection, Inc. (FPSI) and Biddle Consulting Group
  • Stacy L. Bell, MSExecutive Vice President of Fire & Police Selection, Inc.
  • Alisa Arnoff, Esq.Attorney with Scalambrino & Arnoff, LLP

3. Presentation Overview

  • Review of critical firefighter physical abilities
  • Comparison of fitness testing vs. work-sample testing
  • Legal pitfalls associated with arbitrary fitness tests and the risks associated with employing inappropriate standards at the incumbent level
  • Appropriate techniques to use for setting PAT cutoff scores for new hiresandfor incumbents
  • Importance of maintenance/wellness testing of incumbents

4. Critical Firefighter Physical Abilities

  • 1994-1996 Firefighter Physical Ability Validation Study
    • 331 Fire Suppression Personnel from 41 fire departments identified the critical physical duties performed by fire suppression personnel:
      • Hose drags (dry and charged)
      • Ladder raises, removal, and carries
      • Walking and operating on ladders
      • Searching for fire extension
      • Removing conscious/unconscious victims from fire scene
      • Ventilation techniques
      • Climbing stairs while carrying tools/equipment
      • Hoisting operations

5. Comparing Fitness Tests to Work-Sample Tests

  • Examples ofFitness Tests
    • 1.5 mile run
    • Push-ups/Pull-ups
    • Sit-ups
    • Aerobic Capacity Sub Maximal Stress Test
    • Muscular Endurance & Strength (Arms & Legs)
    • Flexibility Measurements (Shoulder, Trunk, & Legs)
    • Body Fat Composition and BMI
  • Samples ofWork Sample Tests
    • Hose drags:
    • Walking/working on ladders:
    • Removal of unconscious/conscious victim:
    • Climbing stairs with tools/equipment:

6. Whats the Big Difference Between a Fitness Test and a Work Sample Test?

  • Fitness Tests measure a persons fitness (in general) and then make theinference that if they have fitness level X they should be able to perform the job of Y
  • Some fitness tests (e.g., VO2 Max/Cardio fitness) require factoring age and gender into the equation
    • This can be tricky with various employment discrimination laws and federal enforcement agencies
  • Work Sample testsdirectly measurewhether applicants/incumbents can perform the job task.
    • They answer the question: Irrespective of this persons age, gender, race, or disability, can they do the job?

7. NFPA 1583:Standard on Health-Related Fitness Programs for Firefighters

  • In August of 2000, the NFPA published the current standard on health-related fitness programs for firefighters. The standard requires:
    • Fire departments shall require structured participation of the health-related fitness program
    • All members shall participate annually (at least) in a fitness assessment which measures:
      • Aerobic capacity
      • Body composition
      • Muscular strength
      • Muscular endurance
      • Flexibility

8. TheRealityof Firefighter Fitness Programs Source: United States Fire Administration, Survey of the Needs of the U.S. Fire Service 2002 Note: Based on 8,267 departments reporting. Numbers may not add to totals due to rounding. 100 26,354 80.2 21,149 19.8 5,205 TOTAL 100 13,440 87 11,801 12.2 1,639 Under 2,500100 4,572 82.5 3,774 17.5 798 2,500 to 4,999 100 3,629 75.9 2,756 24.1 873 5,000 to 9,999100 2,843 66.2 1,881 33.8 962 10,000 to 24,999 100 1,053 52.4 552 47.6 501 25,000 to 49,999100 487 50.1 244 49.9 243 50,000 to 99,999100 215 46.5 100 53.5 115 100,000 to 249,999 100 64 40.6 26 59.4 38 250,000 to 499,999100 38 28.9 11 71.1 27 500,000 to 999,999100 13 38.5 5 61.5 8 1,000,000 or morePercent Number Depts. Percent Number Depts. Percent Number Depts. TOTAL NO YES Population of Community 9. The Legal Landscape In Plain English

  • A Fire Department cannot discriminate on the basis of race, gender, age, religion, national origin, disability, etc.
  • Intent isnota required element of a discrimination claim.
  • A testing program applied equally to all may be discriminatory if it screens out too many members of a protected class (has an adverse or disparate impact).

10. Disparate or Adverse Impact

  • An employer uses a test that is facially neutral, but has an unjustified adverse impacton members of a protected class by screening them out.
    • Every one is given the same test, but members of one or more protected class do not fare as well as others.
  • How many is too many?
    • The 4/5ths or 80% Rule
      • Pass rate of the minority group80% of the pass rate of the most successful group.
      • Example
        • Whites perform best, with a 60% pass rate.
        • Possible disparate impact exists if African Americans passed at rate less than 48% (60% x .8).

11. Sources of Law

  • Federal
    • Title VII of the Civil Rights Act
    • The Age Discrimination in Employment Act
    • The Americans with Disabilities Act
    • 42 USC1981, 1983
    • U.S. Constitution, Equal Protection clause
      • 14 thamendment, 1
  • State and Local

12. Title VII of the Civil Rights Act

  • Prohibits discrimination on the basis of gender in all aspects of the employment relationship.
      • Uniform Guidelines on Employee Selection provide that physical testing of incumbents must be based on professional accepted methods.
        • Must show test is job-related for the position in question and consistent with business necessity.

13. Gender Norming

    • Having a different set of qualifications given the immutable physiological differences between the genders in an attempt to ensure that qualified members of both sexes are selected, promoted or retained.
      • Strength
      • Aerobic capacity

14. The Age Discrimination in Employment Act

  • The ADEA of 1967 prohibits employers from discriminating against an individual because s/he is age forty years or older.
    • The ADEA was amended in 1996 to include apublic safety exemption :
      • Fire Departments which demonstrate that the age requirement is a bona fide occupational qualification (BFOQ)canlegally impose maximum age requirements.

15. Reasonable Factors Other than Age

  • Proposed RFOA regulations consider
    • To what extent did the employer take steps to assess the adverse impact on older workers?
    • How severe is the harm, in terms of the numbers affected and extent to which preventative or corrective steps are taken to minimize impact?
    • Are there other options available?
    • Why did the employer selected the test it did?

16. Age Norming

    • Having a different set of qualifications given the physical changes which occur as one ages to control for concomitant decreases in muscular strength, endurance, and aerobic capacity attributable to the aging process.

17. The Americans with Disabilities Act

  • Cannot discriminate against a disabled individual who can do a jobs essential functions with or without a reasonable accommodation.