Trucking Company's 'Unnecessary' Fitness Test

In today’s case law update we continue our series on employment law issues in the trucking community and highlight a pending case in which workers’ compensation, gender discrimination, and retaliation allegations intersected to create a perfect legal storm for one midwestern carrier. (See also our recent news article regarding sexual harassment in trucking.)

The EEOC is suing Minnesota-based carrier, Stan Koch & Sons Trucking, on behalf of Alana Wilson, a woman who says Koch refused to rehire her after she filed a gender discrimination complaint following her workers’ compensation claim, per May 2019 EEOC press brief.

The lawsuit names Stan Koch & Sons Trucking Inc., a Twin Cities-based fleet with more than 800 drivers and 1,300 power units, as defendants. The lawsuit seeks back pay and other financial awards for plaintiff Alana Nelson, as well as punitive damages. Federal suit by the EEOC was filed May 24, 2019.

According to the EEOC’s lawsuit, Stan Koch & Sons Trucking refused to allow Nelson to apply for re-employment, because she had filed an EEOC charge of sex discrimination against the company.

According to court documents, Nelson was hired as a driver in July 2012, and was injured at work around April 13, 2013. The documents do not specify the nature or circumstances of the injury. Nelson was reportedly placed on leave through the company’s workers’ compensation program from the time of the injury until July 15, 2013. The complaint alleges she was fired on July 18, 2013, after failing an isokinetic test she was required to take before returning to work.

“At the time of her discharge, defendant informed Ms. Nelson that she was eligible to re-apply for employment with defendant,” the complaint states.

Following her termination, Nelson filed a charge in December 2013 alleging that the company’s use of the isokinetic test was discriminatory to women.

The complaint states that Nelson applied for a job with the company in April 2014 but was allegedly told in a letter that her application was on hold “due to a pending legal matter.” The EEOC complaint alleges the legal matter in question was Nelson’s gender discrimination complaint.

The commission states the alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, including retaliation for filing a charge of discrimination with the EEOC.

“Refusing to hire an individual because she filed an EEOC charge is retaliation,” Gregory Gochanour, EEOC’s regional attorney in Chicago, said in a news release. “That is the law, and the EEOC will hold employers accountable if they violate it.”

Following the initial suit in May 2019, the EEOC then filed another suit against Koch and Sons on August 7, 2019, alleging disparate discriminatory impact on behalf of the class of women filtered out by the employer’s strength test. It released an additional press release indicating:

Koch's use of the CRT Test, a strength test developed by Cost Reduction Technologies, Inc., discriminates against women truck drivers because of their sex. Specifically, the EEOC alleges that the CRT Test disproportionately screens out women who are qualified for truck driver positions at Koch. This includes the original complainant, who was fired from her job as a truck driver by Koch when she failed the CRT Test.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, including the use of employment practices that have a disparate impact on women because of their sex and that are not job-related and consistent with business necessity. The EEOC filed suit, EEOC v. Stan Koch & Sons Trucking, Inc., Civil Action No. 0:19-cv-02148, in U.S. District Court for the District of Minnesota after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking relief for a class of women who were fired because they failed the CRT Test and an injunction preventing Koch from continuing to use the test.

"Employers cannot use a test that disproportionately excludes women unless they have proof that the test is actually related to one's ability to do the job," said Julianne Bowman, the EEOC's district director in Chicago. "The EEOC is committed to expanding women's access to traditionally male-dominated careers through the removal of unnecessary and discriminatory barriers to employment."

Gregory Gochanour, EEOC's regional attorney in Chicago, added, "It is unfair to deprive qualified women of the opportunity to work in these jobs. The EEOC will continue to enforce federal anti-discrimination laws against employers who use unlawful tests as part of their hiring process."

The evolution of legal claims stemming from Ms. Nelson’s work injury provides us an opportunity to remind our followers of several things:

  1. When addressing what may appear to be a narrow legal issue it’s important to seek input from a well-rounded attorney who will advise you regarding related legal issues that may need to be considered. Here, a workers’ compensation claim spawned multiple employment law matters that may not have been considered by the individual involved in the initial injury case.
  2. Any physical examination required by an employer must be narrowly tailored to test for the actual job requirements. Should such exam go beyond the scope of the physical needs of the job the employer will unnecessarily screen out qualified candidates and potentially find themselves on the defensive for disparate or discriminatory treatment litigation.
  3. Employers are prohibited from retaliating against employees who have exercised their legal rights. You should seek the input of a knowledgeable attorney before you take any actions against an employee who may later be able to make a retaliatory discharge claim against you.
  4. To the extent such agreements are permitted in your jurisdiction or in the context of the legal matter you have at hand, you may want to consider speaking to your attorney regarding resignation and release of claims agreements.

Should you need assistance navigating these waters, please contact Megan Wagner at (804-377-1275) or Steve Setliff at (804-377-1261).