1. DePeters, Co. is sued for sex discrimination on the grounds that too few women are hired because fewer women than men achieve passing scores on a required manual dexterity and physical strength test. DePeters, Co. offers in its defense that even though fewer women score high enough on the test, a greater percentage of the passing women are hired. The company maintains that, as a result, the percentage of women in the workforce mirrors the percentage of available women in the labor pool. A group of women who took the test and failed file suit. Explain the basis for the cause of action, and analyze the merits of the cause of action, employer defenses, and likely outcome. Support your response with applicable law.
(Chapter 6) The women would file suit, alleging a violation of Title VII of the Civil Rights Act of 1964, alleging that the test has a disparate impact upon women. Even though a greater percentage of the passing women are hired, the employer's process of arriving at the bottom-line figures should be scrutinized for disparate impact. This situation is similar to the case of Connecticut v. Teal, 457 U.S. 440 (1982), in which the Supreme Court held that the "bottom-line" result does not preclude employees from establishing a prima facie case, nor does it provide the employer with a defense. Although the percentage of the women in the workforce mirrors the percentage of available women in the labor pool, the test still results in fewer women passing it than men. Therefore, the test has a disparate impact upon women.
The employer's defense to this suit would be that passing the test is a bona fide occupational qualification (BFOQ). DePeters would argue that the job required manual dexterity and physical strength similar to that which is tested. If they were able to show that passing the test was reasonably necessary to their particular business, they may have a valid defense against the claim. The burden of proof would be on...