Be Wary When Using Tests to Screen Job Applicants

November 13, 2007

Summary
One of four articles in the Winter 2007 edition of the Employment Law Briefing newsletter, this article focuses on the fact that the Eighth Circuit had to decide whether an employer engaged in sex discrimination in violation of Title VII when it used a weight-lifting test that resulted in a substantial drop in female hires. Here’s what happened in EEOC v. Dial Corp. 469 F.3d 735 (8th Cir. 2006). Other articles in this issue are: 2. Sexual Harassment Not Limited to Male Against Female, 3. Has the Social Security Administration’s “No Match” Letter Met its Match? and, 4. Court clarifies employees’ FMLA rights.

Sex discrimination and "disparate impact"

Be Wary When Using Tests to Screen Job Applicants

The Eighth Circuit had to decide whether an employer engaged in sex discrimination in violation of Title VII when it used a weight-lifting test that resulted in a substantial drop in female hires. Here's what happened in EEOC v. Dial Corp. 469 F.3d 735 (8th Cir. 2006).

Measures to reduce injuries
A sausage factory required entry-level employees to be able to carry about 35 pounds of sausage and lift it to heights between 2 feet and 5 feet above the floor. These employees experienced disproportionately more injuries than the plant's other workers.

To reduce injuries, the plant implemented several measures, and injuries trended downward. Four years later, the plant started screening potential hires with a test that required lifting a 35-pound bar from a frame and carrying it to and placing it on another frame. The frames were about 2 feet and 5 feet high. An occupational therapist recorded how many lifts applicants completed working at their own pace in seven minutes and commented on each applicant's performance.

The test's impact?
After the test was implemented, the decline in workers' strength-related and overall injuries, which had begun after the implementation of the initial measures, continued. But only 15% of new hires were women - down from 46%. Adding the test was the only change in the plant's hiring practices.

An applicant who wasn't hired even though she had passed the test filed a discrimination complaint with the EEOC. It sued the plant on her behalf and on behalf of 53 other women who were denied employment after taking the test, 24 of whom had been unable to complete it.

At trial, the jury found that the plant had engaged in a pattern or practice of intentional discrimination. The trial court held that:

The plant appealed.

Intentional discrimination?
The Eighth Circuit noted that plaintiffs alleging a pattern or practice of intentional sex discrimination must prove "regular and purposeful" discrimination by a preponderance of the evidence. This requires more than the mere occurrence of an isolated discriminatory act. Rather, plaintiffs must show that discrimination was the employer's standard operating procedure.

The Eighth Circuit rejected the plant's argument that the EEOC had failed to establish a pattern or practice of intentional sex discrimination. The court found that women and men had worked the same job for many years before the test was instituted, but that the percentage of women hired vastly decreased after the test. Despite this, the plant continued to use the test, and the percentage of women who passed it declined with each use.

Also, other evidence showed that, while women and men received similar comments on their test forms, the plant offered to hire only the men. So the court held that a reasonable jury could have found a pattern and practice of intentional discrimination against women.

Business necessity?
The plant also disputed the trial court's findings of disparate impact and the conclusion that the plant had failed to prove the test was necessary to establish effective, safe job performance.

The Eighth Circuit noted that, after a disparate-impact plaintiff establishes a prima facie case, the burden shifts to the employer to show that the challenged practice is "related to safe and efficient job performance and is consistent with business necessity." To use the business-necessity defense, an employer must prove that the practice was related to the specific job and its required skills.

The plant contended that the test was valid, and its physiology expert testified that the test highly represented job-required actions. But the trial court was persuaded by the EEOC's industrial-organization expert, who testified that a crucial test aspect was "more difficult than the sausage-making jobs themselves" and that the average applicant had to perform four times as many lifts with no rest breaks as current employees performed on the job.

The plant also argued that the test was valid because both overall and strength-related injuries decreased dramatically after it was implemented. The plant claimed that injuries decreased because the test predicted which applicants could safely handle the strenuous job.

But the Eighth Circuit noted that the injury rate started to decline before the test was implemented. Moreover, fewer women than men employees were injured in two of the three pretest years. So the Eighth Circuit concluded that the plant had failed to demonstrate that the test was a business necessity.

Check for disparate impact
Before implementing any test to screen job applicants, prudent employers will check for any disparate impact. They also will keep in mind that they may be hauled into court some day to justify a test's business necessity.

Sidebar: A slippery slope at Slippery Rock
In Scheidemantle v. Slippery Rock University State System, 470 F.3d 535 (3d Cir. 2006), a woman who worked as a labor foreman at a college applied - along with three men - to be promoted to a posted locksmith job that required two years' locksmithing experience. None of the applicants had the requisite experience.

But the college ultimately hired one of the male applicants anyway, and a year later the job opened up again when he was promoted. This time the job posting required three years' locksmithing experience. The woman applied again, but the college gave the job to a man with even less experience than the previous jobholder had had when hired.

The woman alleged gender discrimination for both rejections. The trial court ruled that she wasn't qualified for the locksmith position according to the posted objective criteria.

But the Third Circuit disagreed. It held that, because the college had placed similarly "unqualified" men in the locksmith position, it could no longer point to the job posting's objective qualifications as a valid reason for refusing to promote the woman applicant.

So the court held that - by departing from the objective requirements in its hiring decision - the college had established different qualifications, by which the woman applicant was qualified. Thus, as a protected applicant who suffered an adverse employment decision, she could establish a prima facie discrimination case.