A federal judge has ordered the Dial Corporation to pay over $3 million to resolve a sex discrimination suit brought by the Equal Employment Opportunity Commission (EEOC) against The Dial Corporation’s Armour Star Meat Packing plant in Fort Madison, Iowa. Fifty two women who were rejected for entry-level production jobs because they had failed a strength test will be offered jobs at Dial and will share approximately $3,390,000. The Bureau of National Affairs (BNA) has a summary here.
The case began with a single rejected job applicant. Paula Liles had performed “heavy physical work” in the past, met the other job requirements and was given a conditional job offer pending her passing of a physical test. The test required the repeated lifting of 35 pounds to a height of 65 inches (Ms. Liles herself was only 62″ tall, so she was lifting the racks 3″ above her head). Despite her lack of height, she past the test, but she was still not hired because at times during the test she had to stand on her tiptoes. The company was concerned that this stretching might increase her risk of injury. (They are probably right — our posts on rotator cuff injuries highlight the risks of working “above the shoulder.”)
But failing the test does not correlate with Ms. Liles and other female applicants being unable to perform the work. That’s where Armour Star went astray of the law.
A Test of Strength
The judge determined that the test discriminated against women, since fewer than 40% of female applicants passed the test, while nearly all male applicants passed. Here are three critical facts that hurt the company’s case: first, prior to the testing, women had been successfully performing the jobs in the sausage making department. Second, injury rates for male and female employees doing this work were virtually identical. And finally, the test was more difficult than the job itself.
No one questions Dial’s goal of reducing workplace injuries. However, testing does not occur in a vacuum. Prior to implementing the test, 46 percent of the individuals hired for the job had been women. The new test resulted in most of the women losing their jobs.
Given the disparate impact of the test on female employees, the court determined that the test violated Title VII of the 1964 Civil Rights Act. So now the company must pay.
Dialing Back
Where did an apparently well-intentioned employer go wrong? After all, implementing pre-employment testing is considered a “best practice” in reducing workplace injuries. Unfortunately, Dial’s program appeared to be missing several critical elements:
– a feedback loop, where test results were analyzed to ensure that the impact was fair and equitable. The high failure rate of women should have raised flags.
– a re-engineering loop, where the work itself is examined to ensure that it is organized as efficiently and safely as possible. To my mind, the 65″ lifting on a repetitive basis is an ergonomic problem that might well be solved through re-engineering.
– Finally, a common sense loop. Because many women had been performing the work safely in the past, their high failure rate should have brought the test itself into question.
This is a case where apparently well-intentioned management became too enamored of their new hiring process. They were convinced that the strength test would lower the risk of injury to workers. On a superficial level, you could certainly make this case. But the test results, with the high failure rate of women, should have brought the entire process into question. It didn’t and the company has now paid the price. Let that be a fair warning to any other employers contemplating pre-placement testing to reduce the risk of injuries.
