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To reduce injury rates at one of its plants, your company instituted a pre-employment strength test called a Work Tolerance Screen (WTS) to evaluate potential employees. The test requires job applicants to lift and carry a 35-pound bar between two frames. Since your company started using the test, you’ve noticed that the percentage of women who pass has decreased every year. Overall, only 38 percent of female applicants have passed the WTS. On the other hand, nearly 97 percent of male applicants have passed. Moreover, in the three years before the WTS was introduced, 46 percent of new hires were women. However, that number dropped to 15 percent after the WTS was implemented. The good news is that both overall injuries and strength-related injuries among the workers has declined.
You have just learned that the Equal Employment Opportunity Commission has filed a sex discrimination lawsuit on behalf of a class of female applicants who applied for entry level positions with your company but were denied employment after taking and failing to pass the strength test. Will the EEOC prevail?
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Answer: |
Yes. Based on very similar facts, the Eighth Circuit, affirming an almost $3.4 million verdict in a Title VII action brought by the EEOC, ruled that an employer’s use of a pre-employment strength test had an unlawful disparate impact on female job applicants. In addition, the court found that there was sufficient evidence for the jury to conclude that the employer had engaged in a pattern-or-practice of intentional sex bias through its use of the test.
The court noted that after the test was implemented, the disparity between the hiring of women and men was nearly ten standard deviations. Despite knowing about that disparity, the employer continued to use the test. Although the employer argued that the EEOC’s statistical evidence was inapplicable because women and men are not similarly situated and have profound physiological differences, there was evidence that women and men worked in the same job together for many years before the strength test was adopted. In addition, the evidence also revealed that women and men received similar comments on their test forms, but only the men received offers of employment.
The employer also argued that because the test was used to reduce injury rates and was content and criterion valid under the EEOC’s Uniform Guidelines on Employee Selection Procedures, which govern pre-employment testing, the test did not have a disparate impact on women. Rejecting that argument, the Eighth Circuit noted that the trial court was swayed by the EEOC’s expert witness who stated that the WTS was more difficult than the job itself. Moreover, the evidence established that plant injuries started decreasing before the test was adopted due to other measures the employer had implemented several years earlier. And, the court pointed out, the injury rate for female employees was lower than the injury rate for males in two of the three years before the test was implemented. Thus, the court concluded, the employer failed to show a business necessity for the test.
Source: EEOC v Dial Corp (8thCir 2006) 88 EPD ¶42,600.
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