PUSH-UPS, SMUSH-UPS. QUALIFICATION STANDARD UNENFORCEABLE
Management can’t enforce physical fitness qualification standards for employees—unless they follow the law. It is not hard to wander from the requirements, as the Fish and Wildlife Service (FWS) did not long ago. That case provides a good overview of how employees and unions can attack certain fitness qualification standards.
FWS required employees be able to bend over and touch their toes. The applicant met that requirement during the pre-employment medical review and got the job, but asked for an accommodation after he was selected. He had two herniated disks in his neck from his time on active duty, making him a disabled employee under the law. The injury affected his major life activities of sitting, reaching, and bending. Specifically, he could not sit on the floor with his legs held straight together, calves remaining on the floor, and reach to extend his fingers beyond his toes. Additionally, about once a year he experienced muscle spasms in his back, which he treated with a prescription muscle relaxant. Consequently, he asked to be allowed to use the agency’s physical fitness equipment for one hour three times a week under an agency policy encouraging fitness. In fact, the agency physical fitness coordinator recommended it. But that is where the water got very murky in the FWS ecosystem.
The employee’s supervisor refused to let him use the program. When the employee formally asked for the accommodation under the Rehabilitation Act, someone in management took more information from him, but no one ever formally responded—other than to fire him to failure to meet the physical fitness standard.
When the case got before EEOC, it wrote, “The question now is whether the “sit and reach” requirement that Complainant failed is consistent with the requirements of the Rehabilitation Act. If the standard itself fails to meet the ‘job-related and consistent with business necessity’ requirement, or if the Agency failed to apply the standard in an appropriate way (for example, by failing to determine whether performance could be achieved through reasonable accommodation) Complainant has a valid claim.”
Focusing on the first criterion that the standard be job-related and consistent with business necessity, EEOC pointed out that, “We note that not one management official, human resources official, physical fitness official, law enforcement official, or coworker was able to state in the record how a Wildlife Refuge Specialist’s ability to reach over his toes while sitting down with his legs outstretched was related to any of the functions of the position. Nowhere in the record did the Agency include a single scenario where a Wildlife Refuge Specialist may need to reach over his toes while sitting down with his legs straight out and against the ground. Instead, all witnesses generally stated that it was required because it was part of the PEB.”
Consequently, EEOC ruled the agency failed to meet the first criterion. As for the second one concerning how FWS applied the standard, EEOC found FWS management had, “waived the PEB ‘sit and reach’ requirements for an individual in a substantially similar law enforcement position. Finally, while Wildlife Refuge Specialists are required to pass the PEB when they are first hired, they are never required to pass the PEB again during their employment.”
And that is how an agency’s physical fitness standard is essentially ruled null and void in case anyone else needs to push back against one.
These facts came from the EEOC entitled, Elden R., Complainant v. Kevin Haugrud, Department of the Interior (Fish and Wildlife Service), Agency, EEOC No. 0120122672 (2017)