A group of over-50 security guards can’t sue their former employer based on job-related testing they repeatedly failed, resulting in their termination, the Tenth U.S. Circuit Court of Appeals recently determined.

Amtex Security, Inc., provides security guards to the United States Army. As part of the contract between the parties, the Army requires the guards to pass an annual physical agility test. Before 2010, the test divided standards based on age.

But after reviewing its regulations, the Army told Amtex that all guards had to meet the same standard–regardless of age.

Ten Amtex employees over the age of 50, working as Army-contract security guards, failed to pass the test twice and were terminated. They filed a putative class action suit pursuant to the Age Discrimination and Employment Act.

Although the plaintiffs had indeed established a prima facie case of disparate treatment in violation of the ADEA, the Tenth Circuit concluded that their termination was for a “legitimate, non-discriminatory business purpose.”

In vain, the guards argued that Amtex could have delayed implementation of the new standards, sought an exemption from the requirements, or allowed them to take an alternative test.

“Amtex presented evidence [that] the Army required implementation of the new [standards] in January 2010; that Amtex was required to comply with the new [standards], and that the Army, not Amtex, refused to allow the plaintiffs to take an alternate test,” the court wrote.

The employer similarly overcame a disparate impact claim by the plaintiffs, despite evidence that the new standards had a “significant” effect on those over 40. “Amtex met its burden of producing evidence that its use of the new [standards] was based on a reasonable factor other than age, namely to satisfy the requirements of its contract with the Army,” the three-judge panel said.

To read the decision in Dugan v. Amtex Security, Inc., click here.

Why it matters: Job-related testing that adversely affects older employees may be legal. As explained by the Tenth Circuit, the testing must be based on a reasonable factor other than age – in the Dugan case, the security guard company was required to adopt the new testing standards to satisfy the requirements of its contract with the Army. Employers relying upon job-related testing that may have a disparate impact on older employees should be prepared to establish that it is based upon a reasonable, business-related purpose and is not a pretext for age discrimination.