Do fitness tests that applicants must pass to qualify for physically demanding jobs like police officers and firefighters discriminate against women and older men?
THE 80% RULE
The answer is NO if the pass rate among women and older men is 80% or more of the pass rate for younger men.
THE SASK. CASE
A new case from Sask. challenges the validity of the 80% rule.
To qualify as a Type 1 wildland firefighter in Sask., candidates must complete a series of rigorous physical tasks within 17 minutes, 15 seconds. The union claims the so called WFX-Fit test discriminates against women and older men. The government invokes the 80% rule and notes that the pass rate of women and older men is 82.5% of the pass rate for younger men. Game over, right? Wrong.
The arbitrator rules that the WFX-Fit test with a 17:15 cut score may still discriminate even if it meets the 80% test. After a series of appeals, the Sask. Court of Appeals upholds the ruling [SGEU v Saskatchewan (Environnent), 2018 SKCA 48 (CanLII), June 15, 2018].
The arbitrator’s ruling that the test was potentially discriminatory was reasonable given the lack of evidence showing that the roughly 20% of female and older male applicants who failed the WFX-Fit test couldn’t do the work of a Type 1 wildland firefighter. The arbitrator didn’t say that the women and older men who failed the test actually were qualified, only that this could happen at some point in the future. And the mere potential of an adverse impact was enough to make out a prima facie case of discrimination. A prima facie case isn’t definitive proof of discrimination; it just means that the case has enough substance to survive dismissal and warrant a trial. While that may sound like a legal technicality, it has enormous practical significance to the extent it increases the claimant’s leverage by giving the defendant incentive to settle.
The case has significance beyond Sask., not only in Alberta, BC, Newfoundland and other provinces that use the WFX-Fit test for firefighters but for any employers that rely on fitness tests with specific cut scores to disqualify what they believe to be unqualified applicants. As the Court explained, “whenever an employer develops a hiring practice that depends upon the use of a numeric test, and the calibration of the number of minutes depends upon physical attributes, it runs the risk of the policy being found to be prima facie discriminatory.”
THE BOTTOM LINE
Beware of assuming that women and older men can’t do the job merely because they flunk the fitness—even if that test meets the 80% rule.