Pre-Employment Physical Strength Testing

Dial is an international corporation that manufactures and distributes a wide variety of consumer products. This case arose from the company's Fort Madison, IA, meat-packing plant and involved entry level-workers assigned to the sausage-packing area. The workers there lift and carry up to 18,000 pounds of sausage every day, and walk the equivalent of four miles in the process. The job requires workers to carry approximately 35 pounds of sausage at a time and to lift and load the sausage to areas as high as 30 and 60 inches above the floor.

In 2000, Dial implemented a strength test to evaluate potential workers. Implementation of the strength test was part of a broader effort by the company to reduce workplace injuries in its sausage-packing area. Although workplace injuries in this area of the Fort Madison plant did decrease after implementation of the applicant strength test, the test quickly came under scrutiny from the EEOC.
The agency eventually filed suit against Dial in September 2002 on behalf of more than 50 women who had applied to work at Dial and who had been rejected after taking the strength test. Twenty-four of the 54 women on whose behalf the suit was filed had been unable to complete the test at all. The EEOC claimed that Dial had engaged in sex discrimination in violation of Title VII of the Civil Rights Act of 1964 when it implemented the test, and that the test had an unlawful disparate impact on women applicants.

A jury trial was held in August 2004, and the jury returned a unanimous verdict in favor of the EEOC, finding that Dial had engaged in a pattern or practice of intentional discrimination. After the trial, the parties submitted additional briefing and evidence relating to the disparate impact allegations. The district court concluded that the strength test had a disparate impact on female applicants, that it was not a business necessity, and that the same safety results could have been achieved through use of less discriminatory alternative means. The appeal to the Eighth Circuit followed.

Justification for Testing

The strength test at issue in EEOC v. Dial was just one part of Dial's larger effort to reduce the injury rate in the sausage packing area of its Fort Madison plant during the late 1990s. That area experienced a disproportionate number of injuries as compared with the rest of the workers in the plant. Dial implemented several measures to reduce the injury rate beginning in late 1996, including the strength test. Other efforts included an ergonomic job rotation, institution of a team approach, lowering the height of machines to decrease lifting pressure for the employees, and conducting periodic safety audits.

In the year 2000, Dial implemented the strength test, which was called the Work Tolerance Screen (WTS). All applicants for the sausage-packing area were required to take the test, which involved each applicant carrying a 35-pound bar between two frames, approximately 30 and 60 inches off the floor, and lifting and loading the bar into the frames. The applicants were told to work at their own pace for seven minutes. An occupational therapist and the plant nurse watched and documented each applicant's performance.

During the three years prior to introduction of the WTS, 46% of the new hires in the sausage-packing area were women. After implementation of the WTS, the number of women hires dropped to 15%. Implementation of the WTS was the only change in the company's hiring practices for the sausage-packing area during that time. The overall percentage of women who passed the WTS was 38%, while the men's passage rate was 97%. Overall injuries and strength-related injuries among sausage workers declined after 2000 (when the WTS was implemented), but the downward trend in injuries had begun in 1998.

A Battle of Experts

At trial, both the EEOC and Dial presented competing expert witnesses. The EEOC presented an expert on industrial organization, who testified that the WTS was significantly more difficult than the requirements of the actual sausage worker job, focusing on speed and rest breaks as the primary differences. He also testified that the women's injury rate in the sausage-packing area had been lower than that of the male workers during two of the three years prior to implementation of the WTS.

Dial presented two experts in response: one in the area of work physiology and the other in the area of industrial and organizational psychology. These experts testified that the WTS effectively tested the skills representative of the actual
job and that the decrease in injuries in the sausage-packing area could be attributed to implementation of the WTS.

The Rationale of the Eighth Circuit

On appeal before the Eighth Circuit, Dial challenged the district court's denial of its motion for judgment as a matter of law and argued that there was insufficient evidence for a jury to find intentional discrimination. Dial also argued that the district court's finding of disparate impact was erroneous and that the WTS was a business necessity.

The Eighth Circuit began its analysis by stating that a pattern or practice of regular, purposeful discrimination can be established through a combination of statistics and anecdotal examples. What type of statistics will be meaningful in a disparate impact case? The Eighth Circuit pointed out that '[s]tatistical disparities are significant if the difference between the expected number and observed number is greater than two or three standard deviations.' Id. at 741. Against that standard, the court observed that the disparity between hiring men and women in Dial's sausage-packing area showed nearly ten standard deviations.

Both parties offered explanation and context for the statistical evidence. Dial argued that the statistics were inapplicable because men and women are not similarly situated and have profound physiological differences. The EEOC countered with evidence that women and men worked the same job together for many years at the meat-packing plant before the WTS was implemented, and that Dial was aware of the statistical difference in hiring men versus women after implementation of the WTS, but that it continued to use the test anyway.

Ultimately, the Eighth Circuit concluded that the evidence was sufficient for a reasonable jury to find that there was a pattern and practice of intentional discrimination against women, and that the district court did not err in denying Dial's motion for judgment as a matter of law.

The Eighth Circuit also considered Dial's contentions that the district court's factual finding of disparate impact was erroneous and that the district court erred in concluding that the WTS was not necessary to establish effective and safe job performance. These two issues are interrelated, as they are bound up in the burden-shifting analysis typical in disparate impact cases. Once a plaintiff establishes a prima facie case, the employer must show that the practice is 'related to safe and efficient job performance and is consistent with business necessity.' Id. at 742. If this burden is met, the plaintiff can still prevail by showing there is a less discriminatory alternative. Id.

Before the district court, Dial relied on the EEOC's Guidelines on Employee Selection Procedures to establish the validity and appropriateness of the WTS, both in terms of content validity and criterion validity. As to content, the Guidelines provide: '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). Dial's expert physiology witness testified on this point, stating that the WTS was highly representative of the actions required by the job. The district court, however, credited at a higher level the testimony of the EEOC's expert in industrial organization. That expert testified that the WTS was more difficult than the sausage making job itself in that applicants were required to perform four times as many lifts as actual employees and had no rest breaks in between.

Dial also argued that the WTS was criterion-valid under the Guidelines because both overall injuries and strength-related injuries decreased dramatically following the implementation of the WTS. The EEOC countered this empirical data with evidence that injuries among sausage plant workers started decreasing before the WTS was implemented and that the injury rate for women employees was lower than that for men employees in two of the three years prior to implementation of the WTS. The Eighth Circuit held that this conflicting evidence did not require the district court to find that the decrease in injuries resulted from implementation of the WTS, as opposed to the other safety mechanisms Dial put in place in the years following 1996.

The court also addressed a variety of specific damages issues particular to individual claimants in the case, but, on the whole, it affirmed the district court's denial of Dial's motion for judgment as a matter of law, its findings of disparate impact and its award of back pay and benefits to all but one of the claimants.

Considerations for Employers

The EEOC v. Dial case does not signal the end of pre-employment testing, but it does send a strong message to employers that they must be prepared for litigation over such testing and must stand ready to justify the reasons for testing, the methodology, and the relationship of the test to the job requirements.

The EEOC's Uniform Guidelines on Employee Selection Procedures govern the use of screening tools by employers subject to federal anti-discrimination laws. See 29 C.F.R. 1607.1, et seq. The Guidelines apply to tests and other selection procedures that are used as a basis for any type of employment decision, including but not limited to hiring, promotion, demotion, membership, referral, retention, and licensing and certification. In short, the Guidelines provide that the use of any selection procedure that has an adverse impact on the basis of sex, race, or ethnic group will be considered discriminatory, unless the procedure has been validated consistently with the Guidelines.

Although the Guidelines are not binding on courts, they are often relied upon because they promote consistency in the enforcement of anti-discrimination laws in the context of disparate impact claims. See Gulino v. New York State Education Department, 460 F.3d 361, 383 (2d Cir. 2006). Therefore, employers who are considering the use of screening tools (or are already utilizing screening tools) should consider the following issues, as highlighted in the Guidelines:

• Does the screening procedure disproportionately impact female or minority applicants/employees?
• Does the screening procedure accurately test the required skills for the job/opportunity and does it do so under conditions very similar to the actual job?
• Has the screening procedure been validated by a psychologist or other professional?
• Is there an alternative selection procedure that serves the same interests, but does not have the same disparate impact?

Employers who are mindful of these issues and give them consideration prior to implementation of screening procedures will be better positioned to respond to a legal challenge. The consideration of these issues should be well documented so that the employer's rationale can credibly be re-created in the event of litigation. The rationale must also be supported by the numbers. Empirical evidence supporting the reasons for a particular testing procedure and the results of giving it will be critical to success in any legal challenge. Finally, employers may want to consider implementation of a screening procedure on an interim basis to determine if it has a disparate impact on a protected group before it is permanently integrated into the application process.

William C. Martucci, a member of this newsletter's Board of Editors, and Kristen A. Page are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO, respectively. Mr. Martucci is listed in the Best Lawyers in America; his jury work has been highlighted in the National Law Journal's Hot Defense Wins. He may be reached at wmartucci@ shb.com or 202-783-8400; Ms. Page may be reached at [email protected] or 816-474-6550.

Pre-employment testing has always been risky business, but a recent high-dollar jury verdict has sharpened the focus on such testing. In the latter months of 2006, the Eighth U.S. Circuit Court of Appeals considered and affirmed a $3.4 million verdict in favor of the Equal Employment Opportunity Commission (EEOC) in a case involving an employer's efforts to reduce workplace injuries through pre-employment testing. EEOC v. Dial Corporation , 469 F.3d 735 (8th Cir. 2006).

The Dial Corporation, which had implemented a physical strength test for all applicants seeking to work in the sausage-packing area of one of its meat-packing plants, argued that the test was justified and necessary to its business. The jury rejected Dial's arguments and found the company had engaged in a pattern and practice of intentional sex discrimination. The district court also held that the test had an unlawful disparate impact on women.

The Case and Its Procedural Development

Dial is an international corporation that manufactures and distributes a wide variety of consumer products. This case arose from the company's Fort Madison, IA, meat-packing plant and involved entry level-workers assigned to the sausage-packing area. The workers there lift and carry up to 18,000 pounds of sausage every day, and walk the equivalent of four miles in the process. The job requires workers to carry approximately 35 pounds of sausage at a time and to lift and load the sausage to areas as high as 30 and 60 inches above the floor.

In 2000, Dial implemented a strength test to evaluate potential workers. Implementation of the strength test was part of a broader effort by the company to reduce workplace injuries in its sausage-packing area. Although workplace injuries in this area of the Fort Madison plant did decrease after implementation of the applicant strength test, the test quickly came under scrutiny from the EEOC.
The agency eventually filed suit against Dial in September 2002 on behalf of more than 50 women who had applied to work at Dial and who had been rejected after taking the strength test. Twenty-four of the 54 women on whose behalf the suit was filed had been unable to complete the test at all. The EEOC claimed that Dial had engaged in sex discrimination in violation of Title VII of the Civil Rights Act of 1964 when it implemented the test, and that the test had an unlawful disparate impact on women applicants.

A jury trial was held in August 2004, and the jury returned a unanimous verdict in favor of the EEOC, finding that Dial had engaged in a pattern or practice of intentional discrimination. After the trial, the parties submitted additional briefing and evidence relating to the disparate impact allegations. The district court concluded that the strength test had a disparate impact on female applicants, that it was not a business necessity, and that the same safety results could have been achieved through use of less discriminatory alternative means. The appeal to the Eighth Circuit followed.

Justification for Testing

The strength test at issue in EEOC v. Dial was just one part of Dial's larger effort to reduce the injury rate in the sausage packing area of its Fort Madison plant during the late 1990s. That area experienced a disproportionate number of injuries as compared with the rest of the workers in the plant. Dial implemented several measures to reduce the injury rate beginning in late 1996, including the strength test. Other efforts included an ergonomic job rotation, institution of a team approach, lowering the height of machines to decrease lifting pressure for the employees, and conducting periodic safety audits.

In the year 2000, Dial implemented the strength test, which was called the Work Tolerance Screen (WTS). All applicants for the sausage-packing area were required to take the test, which involved each applicant carrying a 35-pound bar between two frames, approximately 30 and 60 inches off the floor, and lifting and loading the bar into the frames. The applicants were told to work at their own pace for seven minutes. An occupational therapist and the plant nurse watched and documented each applicant's performance.

During the three years prior to introduction of the WTS, 46% of the new hires in the sausage-packing area were women. After implementation of the WTS, the number of women hires dropped to 15%. Implementation of the WTS was the only change in the company's hiring practices for the sausage-packing area during that time. The overall percentage of women who passed the WTS was 38%, while the men's passage rate was 97%. Overall injuries and strength-related injuries among sausage workers declined after 2000 (when the WTS was implemented), but the downward trend in injuries had begun in 1998.

A Battle of Experts

At trial, both the EEOC and Dial presented competing expert witnesses. The EEOC presented an expert on industrial organization, who testified that the WTS was significantly more difficult than the requirements of the actual sausage worker job, focusing on speed and rest breaks as the primary differences. He also testified that the women's injury rate in the sausage-packing area had been lower than that of the male workers during two of the three years prior to implementation of the WTS.

Dial presented two experts in response: one in the area of work physiology and the other in the area of industrial and organizational psychology. These experts testified that the WTS effectively tested the skills representative of the actual
job and that the decrease in injuries in the sausage-packing area could be attributed to implementation of the WTS.

The Rationale of the Eighth Circuit

On appeal before the Eighth Circuit, Dial challenged the district court's denial of its motion for judgment as a matter of law and argued that there was insufficient evidence for a jury to find intentional discrimination. Dial also argued that the district court's finding of disparate impact was erroneous and that the WTS was a business necessity.

The Eighth Circuit began its analysis by stating that a pattern or practice of regular, purposeful discrimination can be established through a combination of statistics and anecdotal examples. What type of statistics will be meaningful in a disparate impact case? The Eighth Circuit pointed out that '[s]tatistical disparities are significant if the difference between the expected number and observed number is greater than two or three standard deviations.' Id. at 741. Against that standard, the court observed that the disparity between hiring men and women in Dial's sausage-packing area showed nearly ten standard deviations.

Both parties offered explanation and context for the statistical evidence. Dial argued that the statistics were inapplicable because men and women are not similarly situated and have profound physiological differences. The EEOC countered with evidence that women and men worked the same job together for many years at the meat-packing plant before the WTS was implemented, and that Dial was aware of the statistical difference in hiring men versus women after implementation of the WTS, but that it continued to use the test anyway.

Ultimately, the Eighth Circuit concluded that the evidence was sufficient for a reasonable jury to find that there was a pattern and practice of intentional discrimination against women, and that the district court did not err in denying Dial's motion for judgment as a matter of law.

The Eighth Circuit also considered Dial's contentions that the district court's factual finding of disparate impact was erroneous and that the district court erred in concluding that the WTS was not necessary to establish effective and safe job performance. These two issues are interrelated, as they are bound up in the burden-shifting analysis typical in disparate impact cases. Once a plaintiff establishes a prima facie case, the employer must show that the practice is 'related to safe and efficient job performance and is consistent with business necessity.' Id. at 742. If this burden is met, the plaintiff can still prevail by showing there is a less discriminatory alternative. Id.

Before the district court, Dial relied on the EEOC's Guidelines on Employee Selection Procedures to establish the validity and appropriateness of the WTS, both in terms of content validity and criterion validity. As to content, the Guidelines provide: '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). Dial's expert physiology witness testified on this point, stating that the WTS was highly representative of the actions required by the job. The district court, however, credited at a higher level the testimony of the EEOC's expert in industrial organization. That expert testified that the WTS was more difficult than the sausage making job itself in that applicants were required to perform four times as many lifts as actual employees and had no rest breaks in between.

Dial also argued that the WTS was criterion-valid under the Guidelines because both overall injuries and strength-related injuries decreased dramatically following the implementation of the WTS. The EEOC countered this empirical data with evidence that injuries among sausage plant workers started decreasing before the WTS was implemented and that the injury rate for women employees was lower than that for men employees in two of the three years prior to implementation of the WTS. The Eighth Circuit held that this conflicting evidence did not require the district court to find that the decrease in injuries resulted from implementation of the WTS, as opposed to the other safety mechanisms Dial put in place in the years following 1996.

The court also addressed a variety of specific damages issues particular to individual claimants in the case, but, on the whole, it affirmed the district court's denial of Dial's motion for judgment as a matter of law, its findings of disparate impact and its award of back pay and benefits to all but one of the claimants.

Considerations for Employers

The EEOC v. Dial case does not signal the end of pre-employment testing, but it does send a strong message to employers that they must be prepared for litigation over such testing and must stand ready to justify the reasons for testing, the methodology, and the relationship of the test to the job requirements.

The EEOC's Uniform Guidelines on Employee Selection Procedures govern the use of screening tools by employers subject to federal anti-discrimination laws. See 29 C.F.R. 1607.1, et seq. The Guidelines apply to tests and other selection procedures that are used as a basis for any type of employment decision, including but not limited to hiring, promotion, demotion, membership, referral, retention, and licensing and certification. In short, the Guidelines provide that the use of any selection procedure that has an adverse impact on the basis of sex, race, or ethnic group will be considered discriminatory, unless the procedure has been validated consistently with the Guidelines.

Although the Guidelines are not binding on courts, they are often relied upon because they promote consistency in the enforcement of anti-discrimination laws in the context of disparate impact claims. See Gulino v. New York State Education Department , 460 F.3d 361, 383 (2d Cir. 2006). Therefore, employers who are considering the use of screening tools (or are already utilizing screening tools) should consider the following issues, as highlighted in the Guidelines:

• Does the screening procedure disproportionately impact female or minority applicants/employees?
• Does the screening procedure accurately test the required skills for the job/opportunity and does it do so under conditions very similar to the actual job?
• Has the screening procedure been validated by a psychologist or other professional?
• Is there an alternative selection procedure that serves the same interests, but does not have the same disparate impact?

Employers who are mindful of these issues and give them consideration prior to implementation of screening procedures will be better positioned to respond to a legal challenge. The consideration of these issues should be well documented so that the employer's rationale can credibly be re-created in the event of litigation. The rationale must also be supported by the numbers. Empirical evidence supporting the reasons for a particular testing procedure and the results of giving it will be critical to success in any legal challenge. Finally, employers may want to consider implementation of a screening procedure on an interim basis to determine if it has a disparate impact on a protected group before it is permanently integrated into the application process.

William C. Martucci, a member of this newsletter's Board of Editors, and Kristen A. Page are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO, respectively. Mr. Martucci is listed in the Best Lawyers in America; his jury work has been highlighted in the National Law Journal's Hot Defense Wins. He may be reached at wmartucci@ shb.com or 202-783-8400; Ms. Page may be reached at [email protected] or 816-474-6550.