Did EEOC “Overlawyer” the Dial Corp. Employment Testing Case?
We’re always pleased when the popular Overlawyered blog links to us. Frankly, in the past those links have provided our biggest readership bounces.
So we were happy that Overlawyered picked up the story of the Dial Corp. case involving gender discrimination in strength testing, linking to our post “Dial To Pay $3M for Strength Test with Disparate Impact on Women.”
A couple of comments at Overlawyered raised questions about this employment testing case that I want to try to address here.
The questions:
- Is this case really a good example of overlawyering, or was the EEOC wisely using our taxpayer dollars to prevent sex discrimination in hiring?
- What amounts were awarded to the “victims”?
- Why would an employer impose a test that didn’t correctly screen for employees, since if the test is too restrictive, the employer is hurting itself by excluding many qualified candidates?
- Was this a case in which disparate impact was considered prima facie evidence of discrimination without evidence of discriminatory intent?
Overlawyering?
The EEOC has a litigation strategy (supposedly). Its resources do not allow it to directly litigate many cases, as it did here. This suggests there may have been more legitimacy to the claim than in a private case in which a lawyer is seeking to clean up on a contingent fee from an “extorted” settlement. (On the other hand, Dial had established a bad rep with EEOC from a lengthy sexual harassment case brought by EEOC against Dial.)
This case probably involved an employer with the best of intentions, and no desire to engage in sex discrimination in employment testing. If the mere fact of going after such a defendant qualifies as overlawyering, then the shoe likely fits.
But the EEOC may have seen the case as a good opportunity to set an example on this point: regardless of the employer’s good faith, employment tests that have a disparate impact must be carefully validated.
This may not be wise law (see my popular post “Disparate impact law, Part I – where it all began”). But it is the law, and has been for several decades.
I suspect that seeing an upsurge in use of employment tests, the EEOC has set out to remind a new generation of executives and HR practitioners of the legal risks.
What will be the impact? Some employers will just take their chances. Some may stop or modify certain testing programs. Some may be deterred from starting employment testing programs that could help them select the best employees and reduce workplace injuries. Some will probably bolster employment testing programs with proper scientific validation studies.
Dollars awarded?
On Westlaw, I found two decisions in this case, one listing in detail the amounts awarded each person.
Amounts awarded, including interest, ranged from $152.97 to $162,205.23, with most in low-to-mid five figures.
Why would an employer use a bad employment test?
The reason the case seemed such a great overlawyered example, I think, was the common sense resemblance of the job duties and the test. This suggests the test was good, but simply not adequately validated.
A key piece of evidence was that many existing female employees were able to perform the job, while only 40% of female applicants passed the test.
Perhaps the existing female employees were among those who had passed (or could have passed had it been administered when they were hired). If so, this evidence proves nothing.
Unfortunately, the two opinions and press releases I found provide relatively little explanation of the reasons for the outcome of this case. Nonetheless, I think the answer to this question is simply that some employers don’t know any better. Without expert assistance, it’s tough to know how effective a test is.
George’s Suggestions
The impact of a test or other employment qualification standard on applicants in protected classifications should be studied. If significant disparate impact is found, the employer has a couple of options besides giving up the test altogether or taking their chances on legal action: fine-tuning the test or standard to make its validity more provable, and/or modifying the job duties.
Modify job duties? A big gender discrimination claim source, as in this case, is the proven disparity between men and women in upper body strength. The employer often is concerned about minimizing workplace injuries occurring when employees over-exert. This means in some heavy-duty hard-labor jobs, relatively few women will be able to safely perform the work, and the world’s most valid test will have a (not unlawful) disparate impact.
But guess what? Lots of big, strong, macho, beer-drinking guys cost employers millions in workers comp payments, and often destroy their own careers, when they over-exert. So the alternative of redesigning jobs to reduce physical demands and make them more ergonomically sound should be explored, even without regard to gender discrimination issues. (“Ergonomists seek to study individual jobs and find ways through either job redesign or job selection systems that can better match the worker to the work.”)
Evidence of discriminatory intent?
Though details are sketchy, the court opinions I reviewed disclosed that there was a finding of intentional sex discrimination in hiring. A jury verdict to this effect was upheld against a post-trial challenge (motion for judgment notwithstanding the verdict).
Interesting reasoning from the court:
The Court declines to set aside the verdict. Although, as reflected in this Court’s summary judgment ruling, statistical evidence is alone insufficient to establish intentional discrimination, the EEOC produced ample additional evidence of overt acts on the part of Dial employees from which the jury could infer intentional discrimination.
For example, the . . . score sheets . . . gave passing grades to most male applicants with few, if any, comments. The score sheets for female applicants included subjective comments, regardless of whether the women actually completed the test.
Additionally, Dial clearly was aware of the disparate impact on women as early as April 2001, yet affirmatively chose to continue use of the [test]. Although an extremely close question, the Court finds a reasonable jury could infer that the continued use of the [test] after April 2001 was the product of intentional discrimination.
Questionable reasoning, particularly on the last point. I’d suspect a decent chance of reversal at the Eighth Circuit, but it appears no appeal was filed.
For our prior discussions of this case and related matters, including some excellent reader comments, see:
Photo credit: seanich via flickr
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