The 4th U.S. Circuit Court of Appeals has reversed a lower court’s summary judgment in favor of an employer who required a female employee to take a physical ability test after an on-the-job injury, even though it did not require such a test for similarly situated male employees. Merritt v. Old Dominion Freight Line Inc., 4th Circ., No. 09-1498, April 9, 2010.

Deborah Merritt worked for Old Dominion Freight Lines as a Line Haul driver. While Line Haul drivers spend nights and weekends away from home, driving across state lines, Old Dominion also had Pickup and Delivery drivers who worked locally and rarely had to work nights or weekends. In 2002, after six years as a Line Haul driver, Merritt began to apply for a Pickup and Delivery job, in order to spend more time with her family. She claimed that she applied for several open Pickup and Delivery positions, but that less-experienced male drivers were hired. Merritt alleged that she was told by a terminal manager that the company didn’t want women in the Pickup and Delivery jobs – which required more lifting – because management was afraid that a woman “would get hurt.” Of the company’s 3100 Pickup and Delivery drivers, only six were female.

In March 2004, Merritt was hired as a Pickup and Delivery driver, but not until two male Pickup and Delivery drivers were asked how they would feel about working with a woman. (They responded that they would have no trouble doing so.) Merritt was then put on a 90-day probation period which, she alleged, was not the typical procedure for new Pickup and Delivery drivers. By all reports, Merritt performed her new job successfully, and received no complaints from customers or co-workers. During this initial time frame, however, the terminal operations manager allegedly told a male driver that “this is not a woman’s place.”

In September 2004, Merritt suffered an ankle sprain at work and also was diagnosed with plantar fasciitis. Her doctor prescribed light duty work until a December 27 appointment. At that appointment, the doctor concluded that Merritt’s injury was “not a disabling condition,” and that she could return to work without restrictions. Just prior to that appointment, however, the company’s vice president of safety and personnel decided that Merritt would have to pass a Physical Ability Test (PAT) before she was allowed to return to work. The test was administered on December 28, immediately after Merritt’s full release to return to work, and the company determined that Merritt failed the test. While the test showed no restrictions related to Merritt’s ankle injury, it indicated that the 5 foot, 1 inch Merritt was unable to place a particular box on an overhead shelf, and had difficulty walking backward pulling a cable (Merritt testified that the test occurred in a hallway full of people, and that she bumped into several of them). On the basis of that test, Merritt was fired for “inability to perform job.” She sued under Title VII, claiming gender discrimination.

Although the lower court granted summary judgment to Old Dominion, that decision was reversed by the Fourth Circuit. The appellate court determined that a reasonable jury could find that the evidence presented by Merritt undermined Old Dominion’s assertion that it had a “regular policy” of requiring drivers to pass a PAT before returning from injury-related absences. In fact, the company used the test inconsistently, and injured male drivers often returned to work without taking such a test. Further, the company did not use the PAT – which originally was developed for new applicants – to test Merritt’s return from her ankle injury, but applied the test for strength and coordination. Therefore, the Court found that, given the earlier statements by other managers that the Pickup and Delivery job was not suitable for women, in light of the dearth of females in that position, and considering that the PAT was used only on an intermittent basis and then typically for new hires, a reasonable jury could find that gender discrimination may have been the real reason for Merritt’s termination.

The Court’s opinion and comments create a road map for companies who are serious about instituting a safety-based testing program. According to the Court, a neutral policy which served the company’s legitimate business and safety interests could have withstood legal challenge. However, Old Dominion’s selective use of the PAT, along with the company’s changing rationales for its use, possible sexist remarks, and a statistical lack of females in the subject position all could indicate to a jury that the company was reserving the more desirable “Pickup and Delivery” positions for male drivers.