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 8th 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 Corp., 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.