Dive Brief:

• Upstate Niagara Cooperative Inc. has agreed to pay $1.35 million and to meet a hiring goal of 15% to settle allegations that the New York employer refused to hire qualified women for production-related positions at its dairy facilities since 2009. The employer also failed to retain applications and related hiring documents in violation of Title VII’s recordkeeping requirements, the U.S. Equal Employment Opportunity Commission had alleged (EEOC v. Upstate Niagara Cooperative, Inc., No. 16-cv-00842 (W.D.N.Y. Feb. 5, 2020)).
• The employer allegedly hired 160 employees for production-related jobs between 2008 and 2014; five were women. Among other things, EEOC alleged the employer's physical tests had a disparate impact on female applicants.
• A federal district court declined to dismiss the suit and the parties settled. The employer agreed to develop and implement a recruitment plan within 90 days aimed at increasing the number of female applicants with a goal of hiring women into at least 15% of the production positions. However, if the company uses its best efforts, a failure to achieve the hiring goal is not a breach of the decree, according to court documents.

Dive Insight:

Title VII prohibits discrimination on the basis of gender in all aspects of employment, including hiring. Refusing to hire an applicant based on stereotypes and assumptions about what qualifies as "women's work" or "men's work" generally amounts to discrimination, according to EEOC regulations. 

Employers may want to take note of EEOC's argument that Upstate Niagra's physical test had a disparate impact on women. That theory states that a neutral test that has the effect of disproportionately excluding a protected class may be discriminatory if it is not job-related and consistent with business necessity, according to the agency. This may occur when, for example, an employer requires applicants to pass a test that is more difficult that the job duties required.

Employers accused of discriminating against women have entered into hefty settlement agreements in recent years. Sherwood Food Distributors paid $3.6 million and agreed to offer jobs to 150 women to settle a lawsuit alleging it discriminated against female applicants, refusing to hire them for entry-level jobs. An Alaska gold mine also agreed to pay $690,000 to settle an sex discrimination suit brought by a female miner who was denied promotions while male colleagues with less seniority or training were promoted.

To prevent gender-based discrimination claims, experts recommend employers adopt nondiscrimination policies, train those involved in hiring and management, and implement a robust reporting system. HR can also can examine workplace culture, especially in male-dominated industries and occupations, and, with buy-in from management, develop business ethics and conduct rules that support a diverse workplace.