November 28, 2022

Volume XII, Number 332

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November 28, 2022

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Refusal To Re-take Physical Abilities Test Dooms Plaintiff’s Ability To Allege Adverse Employment Action

The absence of an adverse employment action by an employer routinely is fatal to a claim of discrimination (absent proof of constructive discharge). This bedrock principle was reiterated recently in a case where an applicant alleged that she was forced to resign after failing a physical abilities test. Jane D. Dicocco v. William P. Barr (E.D. Va.)  All new hires were required to pass the test because the job itself involved “hazardous duty law enforcement positions.” After this female applicant failed the test, she was permitted to retake it within 24 hours, but declined to do so. While the applicant claimed she was too tired to retake test, the Court found that “her decision to resign rather than retake the exam and potentially fail a second time” was too speculative to support her claims.

The take-aways are significant. First, a test must be job-related and adverse impact on the basis of gender or other characteristic should be explored and addressed. Second, after failing, offering a second chance helps to avoid charges of unfair administration. Third, if an applicant cannot perform essential job functions for non-medical reasons, he or she is not qualified.

Jackson Lewis P.C. © 2022National Law Review, Volume X, Number 66
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About this Author

Adam G. Guttell, Labor, Employment, Attorney, Jackson Lewis, Law firm
Associate

Adam G. Guttell is an Associate in the Long Island office of Jackson Lewis P.C. Mr. Guttell practices in employment and labor law and has been involved in proceedings before federal and state courts, as well as administrative agencies.  He regularly represents clients at labor arbitrations, court and private mediations.  He has assisted in representing management against employment issues ranging from discrimination and harassment to violations of the Americans with Disabilities Act and the Family and Medical Leave Act, as well as labor issues involving disciplinary arbitrations and breach...

(631) 247-0404
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