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Unformatted text preview: that although workers did 1.25 lifts per minute on average
and rested between lifts, applicants who took the WTS performed 6 lifts per minute
on average, usually without any breaks. He also testified that in two of the three years
before Dial had implemented the WTS, the women's injury rate had been lower than
that of the male workers. EEOC's expert also analyzed the company's written
evaluations of the applicants and testified that more men than women were given
offers of employment even when they had received similar comments about their
performance. EEOC also introduced evidence that the occupational nurse marked
some women as failing despite their having completed the full seven minute test.
-4Dial presented an expert in work physiology, who testified that in his opinion
the WTS effectively tested skills which were representative of the actual job, and an
industrial and organizational psychologist, who testified that the WTS measured the 262 requirements of the job and that the decrease in injuries could be attributed to the test.
Dial also called plant nurse Martha Lutenegger who testified that although she and
other Dial managers knew the WTS was screening out more women than men, the
decrease in injuries warranted its continued use.
The jury was asked to decide whether Dial had engaged in a pattern or practice
of intentional discrimination against female job applicants, the date on which any such
discrimination began, and a question relating to damages. The jury returned its verdict
on August 23, 2004. It found Dial had engaged in a pattern or practice of intentional
discrimination beginning in April 2001. The jury awarded a total of $30,003 in
compensatory damages to the nine claimants who testified at trial and declined to
assess punitive damages. Dial moved for judgment as a matter of law, alleging there
was insufficient evidence for a reasonable jury to have found intentional
discrimination. The motion was denied on February 3, 2005, but the district court
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- Spring '08