In response to recent litigation ( Download Bauer v DOJ Decision.0614 ) there have been some spirited conversations here at the FF World Headquarters. Some of these will be translated into articles that we are putting together (but more about that at a later date). The gist of one such discussion revolves around physical testing and whether the rules of the game have changed. In a word: "No." The mandates have not changed although we appear to be gaining some clarity as to their enforcement. The validation options have not changed either, but recent decisions have again placed an emphasis on the origin of the validity evidence and how it is applied. What has changed is the frequency and urgency of the conversations around testing, the goals of testing, and the human capital decisions an agency can validly and lawfully make as a result of the testing outcomes.
Validity Evidence
A colleague with knowledge of the in-house studies conducted by the FBI at the heart of Bauer shared the following with me in a recent conversation:
the test was validated to assess overall physical fitness as it pertains to the safe and effective performance of the Special Agent position. She (Dr. Grubb) also notes that a primary concern was to assess whether a NAT (National Academy Trainee) would be able to perform in a safe manner during their time at the Academy. In addition, the standards should be required to ensure safe performance as a Special Agent, and not just at the applicant or NAT level.
Based on this observation, it appears as though the Bureau may have been mixing apples and oranges and feeding the same mixed salad to everybody. As we have previously noted, the test population in the FBI studies were NAT's, not incumbents, yet they based their defense at least in part on the need for fitness for the job and then chose to apply the same test and standards to both populations.
Methods of analysis notwithstanding, validity evidence typically will focus on the training or on the job. If the demands of the job have been appropriately identified, quantified and their basis established, you essentially set the stage for content-, construct-, or criterion validity (or some combination thereof) depending on how you proceed with the balance of the research. The clear focus though is on the job. Likewise, collecting and analyzing a similar data set originating from the training environment will allow research, test development, and subsequent decisions relative to training.
The point is that validity evidence pertains to a specific arena (job, training, etc.) and therefore, personnel decisions made as a result of performance on the test must be consistent with the evidence.
"How do we use physical testing?"
Law enforcement agencies have a responsibility to identify those who can and those who cannot perform the essential functions of the job, with or without a reasonable accommodation. Although the conditions may differ, a similar mandate exists for selecting people into or out of training. In all instances, job-relatedness is demonstrated via validity evidence and consistency with business necessity via the policies and procedures in place. As such, physical testing of law enforcement officers can and should occur throughout the officer's career. Below are some examples of this testing:
Selection Testing
Pre-hire testing must be job-related. Essentially the hiring entity is saying "We have a physical job and therefore you must pass this physical test to be considered for hiring." In this instance, the test must be demonstrably job-related; the evidence for this relationship is a validation study which focuses on the physical demands of the job.
Pre-Training and Periodic Academy Testing
The physical test, which aids in the admission process, serves two purposes: it helps to ensure safety in training (of the applicant) and it says something about the applicant's likelihood of successfully acquiring the physical skills taught in the academy. The same test may be used throughout the academy session. The validity evidence to support a pre-training or academy test may be based on either the job or the training but the relationship should be documented in a report that complies with the prevailing professional standards.
Graduation and Incumbent Testing
A physical test for graduation from the academy attests to the person's ability to do the job; afterall, they get their badge on Friday on stage and must wear it on Monday during their first shift. The same test can be used for incumbents. In the case of a criterion-concurrent validation study, such a test predicts the person's physical readiness to perform the essential functions of the job, regardless of their prior experience.
Back to Bauer
In rendering it's decision in Bauer, the court found the FBI's adverse action (essentially firing Jay Bauer as a result of the failed fitness test) was an unlawful employment action. (Somebody, somewhere should have anticipated that firing somebody over a failed training test, after the successful completion of training, would come back to haunt them.) This is evidence of the need for good policies, reasonably and predictably enforced. Further, the court determined that the FBI's use of age- and gender-adjusted standards resulted in disparate treatment of the plaintiff - also an unlawful employment practice. This is the second federal court in three years to affirm the same job-same standard edict with which everybody but the DOJ has had to comply.
In summary, our mandate is to identify the minimum level of physical ability that ensures safe and effective job performance and to document the means and the end in a report. For the employing agency, valid, job-related testing supported by defensible policies and procedures are mission-critical to ensuring the physical readiness of their public safety officers. The parts are inextricably linked and together the whole serves to protect the general public.
Stay Safe, Stay Strong
JS