## Facts

- Dial Corporation operated a meat-processing plant in Fort Madison, Iowa, where entry-level employees worked in sausage packing with repetitive lifting and carrying of substantial weight.
- The sausage packing area had a high injury rate, and Dial implemented several safety and ergonomic changes beginning in the late 1990s (including job rotation and equipment adjustments), reducing injuries before any new screening test.
- In 2000, Dial adopted a preemployment physical strength test, the Work Tolerance Screen (WTS), requiring applicants to repeatedly move a 35-pound bar for seven minutes while observed; the plant nurse had final hiring authority based on results.
- After the WTS was implemented, women comprised about 15% of new hires, compared with about 46% before; the pass rate was about 97% for men and 38% for women.
- The EEOC sued under Title VII on behalf of 54 female applicants, alleging both (1) a pattern or practice of intentional sex discrimination in hiring and (2) disparate impact from the WTS.
- A jury found a pattern or practice of intentional discrimination and awarded compensatory damages; the district court also found disparate impact and awarded back pay and benefits, but denied back pay to one claimant due to a criminal conviction.

## Issues

1. Whether sufficient evidence supported the jury’s finding that Dial engaged in a pattern or practice of intentional sex discrimination against female applicants.
2. Whether the WTS caused an unlawful disparate impact on women under Title VII and, if so, whether Dial proved the test was job-related and consistent with business necessity.
3. Whether evidence that injuries declined before the WTS, and that other safety measures were effective, defeated Dial’s business-necessity defense.
4. Whether the district court properly denied back pay to one claimant based on her criminal record.

## Decision

- The court affirmed the jury verdict finding a pattern or practice of intentional sex discrimination and affirmed the compensatory damages awards.
- The court affirmed the district court’s disparate-impact ruling, holding the WTS disproportionately excluded women and Dial failed to prove the test was job-related and consistent with business necessity.
- The court agreed that injury reductions began before the WTS due to other safety measures, weakening Dial’s claim that the WTS was necessary to achieve safety goals.
- The court remanded the limited issue of back pay for the claimant with a criminal record for further proceedings, while otherwise affirming the judgment.

## Legal Principles

- Under Title VII disparate-impact analysis, once a plaintiff shows that a facially neutral hiring practice disproportionately excludes a protected group, the employer must prove the practice is job-related and consistent with business necessity.
- Statistical disparities in pass rates and hiring outcomes can establish a prima facie disparate impact and may also support an inference of intentional discrimination when combined with other evidence.
- General safety concerns and a physically demanding job do not, without adequate validation and a demonstrated need, justify a screening device that substantially excludes one sex.
- Evidence that alternative measures already reduced injuries may undercut an employer’s claim that an additional, exclusionary test is necessary.
- Back pay may be limited if the employer shows the claimant would not have been hired even absent discrimination, but the basis for denying relief must be supported by the record and consistent with the liability findings.

## Conclusion

The Eighth Circuit sustained Title VII liability where Dial’s strength test sharply reduced female hiring and Dial did not carry its burden to show the test was properly job-related and necessary for safety, while sending back for reconsideration the denial of back pay to one claimant based on her criminal history.


E.E.O.C. v. Dial Corp., 469 F.3d 735 (8th Cir. 2006)