Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law. If this is your first visit to Overlawyered, we’re among the oldest legal…

…to this site on Tuesday. Thank you, FARK….

1. I’d like to see more detail about this case. The allegation is that people who could perform the job were flunking the test, and that the employer’s statistics of increased safety reflected other changes to the workplace environment. If both facts are true, then the employer has a problem under the existing construction of the law—but that reflects a problem with the law because:

2. What rational basis would an employer have to impose a test that didn’t correctly screen for employees? If the test is too restrictive, the employer is hurting itself by limiting the pool from which it can hire. Disparate impact should not be considered prima facie evidence of discrimination without evidence of intent or evidence of complete exclusion of the protected class. Women are still being hired for the job, so there’s no reason to think that the employer imposed the requirement for discriminatory reasons.

Your biased “commenting” conveniently leaves out the fact that they only applied the test to new hires, not those who had been doing the job, and that workplace injuries have actually declined since then.

Therefore, the result of the testing would seem to be that fewer people get hurt. Your comments are only “honest” if you ignore the facts so you can get right to your preordained conclusion.

And how about mental tests? Does this mean that sooner or later, we’ll have to stop testing people for jobs like brain surgery or airline pilot? I mean, those tests ARE discriminatory; they discriminate against people who can’t operate or fly airplanes. But are those skills necessary and should they be tested for? I think it’s highly discriminatory to pick a Lehigh graduate over me for that engineering position just because she could pass some silly tests and I can’t.

Seems like we’re confusing equal opportunity with equal ability. Everyone should have an equal opportunity to work where they please, but not everyone has the ability to do every job.

But the most interesting aspect of this is what will happen when the first worker hired without taking or passing this test gets hurt on the job because they couldn’t properly handle the weight of the goods they routinely processed? And how many lawyers will decline to sue Armour Star in this case because a previous case took away Armour Star’s ability to discriminate based on ability to do a particular job?

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Simple fact, people. Men are, on average, stronger and taller than women. They will be more likely to do such a job. Deal with it.

I think you must have slipped a digit while dividing. The $3 million will be split among 52 women in varying proportions, with the highest individual back pay award $164,500, per the EEOC’s Sept. release.