Trucking Company Pays $450,000 to Settle Fresno Workplace Discrimination Case
 Sept. 28, 2012

California’s Department of Fair Employment and Housing (DFEH) settled a group action lawsuit on behalf of newspaper delivery drivers against Penske Logistics, LLC for $450,000. The DFEH alleged that Penske refused to hire the drivers because of their real or perceived disabilities. The case arose after Penske entered into a contract with the Fresno Bee to deliver newspapers. The Bee informed its newspaper delivery drivers that it had outsourced their jobs to Penske, and advised them that they could apply for employment with Penske if they so desired. When the drivers applied, Penske required them to disclose non job-related physical conditions, which is prohibited. Penske also rejected several drivers due to the conditions they disclosed.

The DFEH lawsuit alleged that Penske rejected 13 of the delivery applicants who had ably performed their jobs for the Fresno Bee for four or more years, after they received unsatisfactory scores on Penske’s Physical Capabilities Exam. According to the Department, the exam was neither job-related nor consistent with business necessity, which the Fair Employment and Housing Act (FEHA) requires. Prohibited disability-related questions included whether an applicant has heart disease, diabetes, or high blood pressure. The exam also required applicants to achieve a strength rating of "medium-heavy," while the U.S. Department of Transportation standard Penske claimed to follow assigns a strength demand of "medium" to a wholesale newspaper deliverydriverjob. TheDepartmentallegedthatbecausethe13applicants did not achieve the artificially high strength demand Penske required, Penske refused to hire them, although they had safely and successfully performed the duties of a newspaper delivery driver for the Fresno Bee for years.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows
first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/ Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

In addition to paying $450,000 to the 13 applicants, Penske agreed to stop subjecting applicants at any of its facilities in California to the Physical Capabilities Exam, to maintain and distribute a written policy prohibiting workplace discrimination on the basis of actual or perceived disability, to train its officers, managers, supervisors and Human Resources personnel in California on the policy, and to maintain and distribute written procedures by which current and prospective employees in California may report discrimination.

This is not the first time the DFEH has challenged a pre-employment test. In a class action against Loma Linda University Medical Center, the agency negotiated a settlement for $259,853.96 on behalf of ten job applicants, for subjecting candidates to a "nerve conduction test" to screen out those who have or may have carpal tunnel syndrome or repetitive motion injuries. The applicants who were required to take this test had passed all other employment tests and interviews. In some cases, job applicants had already attended orientation and were ready to start work. The hospital rescinded its employment offer to applicants with "failing" test results, even though
there was no objective evidence demonstrating that they could not perform their essential job tasks. These two settlements suggest that the DFEH is paying increased attention to discrimination based on "actual or perceived disabilities," and starting in 2013 will be able to file class lawsuits in civil court.

Prevention Strategies: The new disability discrimination regulations that will take effect on January 1, 2013 emphasize "accurate and current job qualification requirements." DFEH is clearly starting to enforce this now. The enforcement agency is taking the position that not only were there disability related inquiries, but that rejection of the applicants was "regarded as disabled" discrimination. Accordingly, it is prudent to take a look at the current pre-employment testing protocols to be sure that they are within appropriate guidelines under FEHA (job related and consistent with business necessity) and that any post-conditional offer medical examinations only ask for appropriate job-related medical history.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/ Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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