An EEOC press release a few weeks ago heralded the agency’s victory in EEOC v. The Dial Corporation (# 3-02-CV-10109 S.D. Iowa)
This case highlights the discrimination law hazards of a growing practice of utilizing physical abilities testing for physically demanding labor positions. Typically, the employer’s legitimate motivation is prevention of injury.
Such tests will often have a disparate impact on female applicants, particularly where the test emphasizes upper-body strength. Perhaps this problem can be overcome by top-notch expert validation of the test.
The EEOC press release: “Pre-Employment Test by Dial Corp. Discriminates Against Women, Court Rules in EEOC Case” quotes the district judge:
Dial has failed to fulfill its burden to show it had a ‘compelling need’ for implementation of the [test], and that other, non-discriminatory mechanisms namely, many of the same safety programs actually implemented by Dial could not produce the same results.
One of the key problems with the test was that it screened out women who had been successfully and safely performing the job for years.
Michael is the expert on testing. I’ll bet he won’t disagree too much with this suggestion of mine: for such a test to be valid, most successful long-term employees should be able to pass it.
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