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EMPLOYMENT LAW — 11/27/06

Circuit court upholds EEOC sex bias claim against Dial over strength test

The US Equal Employment Opportunity Commission (EEOC) has declared another victory in its sex bias case against the Dial Corporation (Dial). The Eighth Circuit Court of Appeals has upheld a lower court's decision concluding that a pre-employment strength test used by Dial at its Armour Star sausage-making plant in Fort Madison, Iowa discriminated against female job applicants. The circuit court also affirmed the award of approximately $3.3 million to 52 rejected femaleapplicants. The case arose from a lawsuit filed by the EEOC on behalf of the discrimination victims.

The Eighth Circuit's unanimous decision (Nos 05-4183, 05-4311, November 17, 2006), authored by Judge Diana E. Murphy, approved the findings of US District Judge Ronald E. Longstaff that the strength test had a disparate impact against women. The decision also upheld a jury's finding that after its second year, continued use of the test amounted to intentional discrimination against women. The seven-minute test required applicants to carry 35-pound weights back and forth, lifting them to heights of 35 and 65 inches. More than 95% of male applicants passed the test, but fewer than 40% of female applicants passed. Prior to January 2000, when the test was implemented, approximately half of newly hired workers in the plant were women. The circuit court also found that although the test resembled the job in some respects, it was in fact more difficult than the job, and Dial had not shown that test achieved its stated purpose of reducing injuries.

Paula Liles, of Fort Madison, Iowa, filed the original discrimination charge on which the EEOC's lawsuit was based. Liles and a number of the other class members were hired by Dial following the district court ruling and are currently employed by Dial's successor at the plant, Pinnacle Corporation. The Eighth Circuit's decision also affirmed the district court's award of back pay and the cost of health care premiums for 52 of the 53 class members. It reversed the lower court's denial of back pay to one of the class members and remanded her case for additional relief proceedings.

"We are extremely happy with the successful resolution of this case," said associate regional attorney Jean P. Kamp of the EEOC's Chicago district office, who, with senior trial attorneys Brian Tyndall and Deborah Powers of the Milwaukee area office, tried the case in August 2004. "Fifty-three women were deprived of high-paying jobs based on stereotypes that women are more likely to be injured, when, in fact, these applicants were all qualified to perform work requiring heavy lifting. The fact that many women are not strong enough to perform the work at Dial cannot be allowed to disqualify the number of women who can."

Regional attorney John C. Hendrickson of the EEOC's Chicago district office, which is responsible for EEOC litigation in Iowa, as well as in Illinois, Wisconsin, Minnesota, North Dakota and South Dakota, added, "This case is an example of the EEOC's current focus on systemic cases. Pre-employment tests that screen out women or minorities will be closely examined by this agency."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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