Meeting of May 16, 2007 - Employment Testing and Screening
Madam Chair, Madam Vice-Chair, Commissioners, Ladies and Gentlemen:
I have been asked to provide testimony to you concerning the EEOC’s lawsuit against The Dial Corporation, which resulted in a final judgment of approximately 3.6 million dollars for 53 women who were rejected for entry level production jobs because of a strength test.
The case began with Paula Liles, who is also here to testify today. She had worked through a temporary agency at Dial’s meat packing plant, which manufactures Armour Star and other sausage brands in Fort Madison, Iowa. She had seen the men and women who worked in what was called the smokehouse. It was unquestionably a physically demanding job. Workers would carry 35 pound rods of sausage links between a moving conveyer and a processing table and place the rods into notches from 33 to approximately 65 inches above the floor level, on a continuous basis for an eight hour shift. Defense testimony at trial was that the ability to repeatedly lift 35 pounds to 65 inches is strongly correlated with gender; while some 90% of men are able to do so; only 10% of women can do so.
Ms. Liles knew that she could do it. She applied, and successfully went through Dial’s several step application process. She was offered the entry level production job, subject to a physical exam. However, during the time that Ms. Liles was applying, in early 2000, Dial added another component to the process: applicants were required to complete a physical ability test, called the work tolerance screen.
The test, which had been developed by the plant nurse and an occupational therapist at a local community hospital, looked like the job. Applicants were required to lift a bar with 35 pounds of weights off a table, carry it ten feet and place it on a wooden frame at a height of 35 inches, lift and carry it back to the table, immediately lift and carry it back to the frame and place it at a height of 67 inches, then lift and carry it back to the table again. Applicants were instructed to repeat this cycle “at their own pace” continuously for seven minutes. An occupational therapist recorded the number of cycles completed and comments on the applicant’s body mechanics and signs of fatigue.
Paula Liles took the test in May, 2000. She completed the seven minutes, and the form was marked as “pass.” The comments noted “Lifting up over her head was difficult because of her height.” Her job offer was withdrawn for failing the test, as were those of thirteen of the other 22 women who took the test at that time.
Over the next four years, approximately 97% of the men who took the test passed it and were hired. Approximately 62% of the women who took the test failed it, and had their conditional job offer withdrawn. As a result, only 15% of total hires were women. This compared to 46% of hires being female in the three years before the test was implemented.
The case was tried n federal district court in Des Moines in August, 2004, by the Milwaukee Office with me and Brian Tyndall leading EEOC’s trial team. In addition to ten of the rejected women who testified, much of the evidence was from competing experts. Dial argued that the test could be validated (although it had not been prior to EEOC’s discrimination finding), both because it was like the job (“content validity”) and because it resulted in fewer injuries (“criterion validity”). EEOC’s evidence was that the test was, in fact, considerably more difficult than the job, and that the reduction in injuries actually occurred after 1998 – two years before the test was implemented, most likely because of improved training and introduction of better job rotation procedures.
For me, the case raised some profound issues about sex stereotyping. Perhaps the most overwhelming evidence supporting the EEOC’s claim that the test was not justified by business necessity was the fact that women had performed the job without problems for years before the test was implemented. Whatever the test was screening, which was correlated with being female, was obviously not correlated with job performance, since women were able to do the job; they were just unable to pass the test. Dial assumed that women were more likely than men to be injured, until confronted at trial with their own numbers which showed no difference in injury rates between men and women either before or after the test.
I think the conclusion is obvious, and that it applies in more situations that this one. The fact that most women do not have the upper body strength to perform the smokehouse jobs at Dial is simply irrelevant. The individual women who applied for, and successfully completed the application process at Dial, were among the minority of women who do have such upper body strength. It should have been apparent to Dial (and was, prior to implementation of the test) that women whose job histories included heavy lifting, like men with similar job histories, were qualified for the job.
No one ever questioned why so many women were failing the test. They thought they knew the answer – because the applicants were female and women are not as strong as men. We were happy that this conclusion was rejected by the jury and by the court, who determined that the test was eliminating individual women who had the strength to perform the job successfully. The decision of the Eighth Circuit court of appeals affirming those judgments may be found at 469 F.3d 735.
Thank you very much for your consideration of this important issue. I hope that the Commission will continue to bring cases like this one where the stereotyping may be subtle and perhaps only partially conscious but has the effect of eliminating job opportunities for women like Paula Liles, because of their sex.
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