Employment Discrimination law.docx
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EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. November 17, 2006) -This is a Title VII sex discrimination action alleging failure to hire based on theories of (1) pattern and practice and (2) disparate impact. Dial's Fort Madison, Iowa plant produces canned meats. Entry level employees are assigned to the sausage packing area where they do a lot of lifting. Employees in this area have experienced a disproportionate number of injuries as compared to workers in the rest of the plant. In late 1996, Dial implemented several measures to reduce the injury rate. Then in 2000, Dial instituted a strength test used to evaluate potential employees called the Work Tolerance Screen ("WTS"). For many years, women and men worked together in the sausage packing area. Forty six percent of the new hires were women in the three years before the WTS was introduced. But the number of women hires dropped to fifteen percent after the test was implemented. The EEOC brought suit and prevailed at trial on the pattern and practice claim. Following the jury trial, the parties submitted additional evidence and briefs on the disparate impact claim and the district court ruled in favor of the EEOC. Dial then offered employment to all of the female claimants. Both sides appealed. Dial argues that it was entitled to judgment as a matter of law on the pattern and practice claim. The Eighth Circuit reviews the evidence and disagrees. Statistical disparities are significant if the difference between the expected number and the observed number is greater than two or three standard deviations. Here, the disparity between hiring of men and women showed nearly ten standard deviations. There was also additional evidence, such as the fact that certain men and women received similar comments on their WTS test forms, but only the men were hired. Next, the court also finds sufficient evidence of disparate impact. Dial failed to establish that the WTS was a business necessity. For example, the injury rate for women employees was lower than that for men in two of the three years before Dial implemented the WTS. Next, Dial claims that the district court committed error by awarding back pay and benefits to all but one of the claimants even though twenty four women had been unable to complete the WTS. But the WTS was more difficult than the actual job. Therefore, Dial did not overcome the presumption in favor of awarding back pay. Next, Dial argues that the claimants should not have received back pay for the normal length of time (i.e., from the date of the adverse action until the date of trial) because the plant had a high turnover rate, so even if these woman had been hired, they would not have worked (on average) until the time of trial. The Eighth Circuit disagrees. Next, Dial challenges the award of lost medical premiums without a showing that the claimants had to pay any medical expenses. The Eighth Circuit notes that there is a circuit split on this issue, but it rules (as a matter of first impression in the Eighth Circuit) that the claimants were properly awarded the benefits. Finally, the EEOC cross appeals the denial of back pay to Heather Wright-Bradley. Dial's general counsel told the district court in a conference call that if Wright-Bradley had been hired, she would have been terminated because a background check would have shown that she had a prior criminal history, including at least one felony. The Eighth Circuit notes that the general counsel's representations are not evidence and that there are factual
disputes. Therefore, the court remands for further proceedings on the issue of whether WrightBradley should receive back pay. Then in 2000, Dial instituted a strength test used to evaluate potential employees called the Work Tolerance Screen ("WTS"). For many years, women and men worked together in the sausage packing area. Forty six percent of the new hires were women in the three years before the WTS was introduced. But the number of women hires dropped to fifteen percent after the test was implemented. Under EEOC guidelines, "A content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated." 29 C.F.R. § 1607.5(B). on the otherhand, Dial argues the WTS was criterion valid because both overall injuries and strength related injuries decreased dramatically following the implementation of the WTS. The EEOC guidelines establish that criterion validity can be shown by "empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance." 29 C.F.R. § 1607.5(B)”. The court was not convinced because the injury rate for women employees was lower than that for men in two of the three years before implemented the WTS. The evidence did not require the district court to find that the decrease in injuries resulted from the implementation of the WTS instead of the other safety mechanisms Dial started to put in place in 1996. Dial claims the burden should have been allocated to EEOC as part of the burden shifting framework in disparate impact cases, Firefighters, 220 F.3d at 904. Since Dial failed to demonstrate that the WTS was a business necessity, however, EEOC never was required to show the absence of a nondiscriminatory alternative. I agree with the court because that an employer's belated discovery of wrongdoing by a dismissed employee should not completely bar an award of back pay because of the congressional "objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from discrimination. Finally, the district court's denial of judgment as a matter of law, its findings of disparate impact, and its award of back pay and benefits to all claimants except Wright-Bradley. Her claim for back pay is remanded for further proceedings consistent with this opinion.
References:
Ruth Bader Ginsburg, Sex, Equality and the Constitution: The State of the Art, 4, WOMEN’S RTS. L. REP. 143, 143 (1978). Deborah L. Markowitz, In Pursuit of Equality: One Woman’s Work to Change the Law, 11 WOMEN’S RTS. L. REP. 73, 75 (1989). Ruth Bader Ginsburg & Wendy Webster Williams, Court Architect of Gender Equality: Setting a Firm Foundation for the Equal Stature of Men and Women, in REASON AND PASSION: JUSTICE BRENNAN’S ENDURING INFLUENCE 185, 192 (E. Joshua Rosenkranz & Bernard Schwartz, eds., 1997).
disputes. Therefore, the court remands for further proceedings on the issue of whether WrightBradley should receive back pay. Then in 2000, Dial instituted a strength test used to evaluate potential employees called the Work Tolerance Screen ("WTS"). For many years, women and men worked together in the sausage packing area. Forty six percent of the new hires were women in the three years before the WTS was introduced. But the number of women hires dropped to fifteen percent after the test was implemented. Under EEOC guidelines, "A content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated." 29 C.F.R. § 1607.5(B). on the otherhand, Dial argues the WTS was criterion valid because both overall injuries and strength related injuries decreased dramatically following the implementation of the WTS. The EEOC guidelines establish that criterion validity can be shown by "empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance." 29 C.F.R. § 1607.5(B)”. The court was not convinced because the injury rate for women employees was lower than that for men in two of the three years before implemented the WTS. The evidence did not require the district court to find that the decrease in injuries resulted from the implementation of the WTS instead of the other safety mechanisms Dial started to put in place in 1996. Dial claims the burden should have been allocated to EEOC as part of the burden shifting framework in disparate impact cases, Firefighters, 220 F.3d at 904. Since Dial failed to demonstrate that the WTS was a business necessity, however, EEOC never was required to show the absence of a nondiscriminatory alternative. I agree with the court because that an employer's belated discovery of wrongdoing by a dismissed employee should not completely bar an award of back pay because of the congressional "objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from discrimination. Finally, the district court's denial of judgment as a matter of law, its findings of disparate impact, and its award of back pay and benefits to all claimants except Wright-Bradley. Her claim for back pay is remanded for further proceedings consistent with this opinion.
References:
Ruth Bader Ginsburg, Sex, Equality and the Constitution: The State of the Art, 4, WOMEN’S RTS. L. REP. 143, 143 (1978). Deborah L. Markowitz, In Pursuit of Equality: One Woman’s Work to Change the Law, 11 WOMEN’S RTS. L. REP. 73, 75 (1989). Ruth Bader Ginsburg & Wendy Webster Williams, Court Architect of Gender Equality: Setting a Firm Foundation for the Equal Stature of Men and Women, in REASON AND PASSION: JUSTICE BRENNAN’S ENDURING INFLUENCE 185, 192 (E. Joshua Rosenkranz & Bernard Schwartz, eds., 1997).
