United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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A statistical correlation between a characteristic of an individual and the frequency of some undesirable consequence can be used as a standard for qualification only if no direct individual test would distinguish the able from the unable. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 49; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

One consideration which justifies discrimination based on mere statistical probability has been the degree of risk to human life. Id. at 54; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Where the qualification of an individual cannot be determined, then the employer may determine qualification by applying the criterion of a class characteristic if (1) the discriminatee is a member of that class, and (2) all or substantially all members of that class are immediately unable to do the job. Id. at 56; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When applying a statistical probability test and there is a risk of massive loss of human life, the degree of risk of harm, the degree of probability of defect, and the immediacy of the danger may be weighed against each other. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.