December 15, 2006 / Issue No. 3-06
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Construction Wage Increases Expected to Rise
Labor Department Issues New Guidance on HSAs
Court Strikes Down Pre-Employment Strength Testing as Discriminatory
NCA Develops Jurisdictional Disputes Policy
Contract Language Can Convert 8(f) Relationship Amid Proof of Majority Support

  Court Strikes Down Pre-Employment Strength Testing as Discriminatory

An employer’s use of a pre-employment strength test was unlawful because it had a disparate impact on female job applicants, ruled the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, NB, ND, SD).

The employer, Dial Corp., runs a canned meat factory in Iowa, where sausage-packing employees – who were required to carry about 35 pounds of sausage at a time and lift and load the sausage 30-60 inches off the floor several times a day – were experiencing a disproportionate number of injuries.  In 1996, it implemented a number of measures to reduce the injury rate.  In 2000, it added a strength test to those measures.  For many years prior to that, men and women worked together in the sausage-packing area doing the same job.  Forty-six percent of new hires were women in the three years before testing began, but the percentage dropped to 15 after testing began, and that was the only change made to the company’s hiring process.  The percentage of women who passed the test was much lower than the percentage of men, with only eight percent of women applicants passing in 2002. 

In September 2002, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of 54 female applicants rejected by Dial.  A jury found that Dial engaged in a pattern or practice of intentional discrimination and awarded compensatory damages to the rejected applicants.  A district court judge further found that the strength test had an unlawful disparate impact on women and awarded back pay and benefits.  The circuit court affirmed the awards.

A pattern or practice of intentional sex discrimination in violation of Title VII of the Civil Rights Act of 1964 is established by showing sufficient evidence of “regular and purposeful” discrimination.  The evidence must show that more than an isolated act of discrimination occurred and that “discrimination was the company’s standard operating procedure.”  This can be accomplished through statistics combined with anecdotal examples of discrimination.  A discriminatory intent can be inferred from “the mere fact of differences in treatment,” the court explained. 

Here, the disparity between the hiring of men and women showed nearly ten standard deviations, and Dial continued to use the test even after becoming aware of the statistical disparity.  Also, there was evidence of cases where men and women who received similar comments on test forms but only the men were offered employment.  The court concluded that the evidence was sufficient to support the jury’s finding of intentional discrimination.

A disparate impact case is one where the plaintiff claims that an employment practice which is neutral on its face has a disparate impact on a protected class of workers.  Once a plaintiff establishes the basic elements of a claim, the employer may defend itself by showing that the practice was justified by “business necessity.”  To do so, the employer must prove that the practice “was related to the specific job and the required skills and physical requirements of the position.”  A validity study of an employment test can prove business necessity but is not required if the employer demonstrates that the test is sufficiently related to safe and efficient job performance. 

Dial proffered proof of both content and criterion validity.  The appeals court examined the EEOC guidelines addressing content and criterion validity, and applied those standards to the record in the present case, where the district court found that the test was more difficult than the job itself and that Dial failed to show that the test was responsible for the decline in injuries.  It found that the district court had sufficient cause to conclude that Dial did not prove business necessity and to hold Dial liable for disparate impact discrimination.

EEOC v. Dial Corp., Case Nos. 05-4183, 05-4311 (8th Cir., 11/17/06).

To view the EEOC’s Uniform Guidelines on Employee Selection Procedures, including the standards for validity studies, click here. [ return to top ]