Last month, the Fourth Circuit overturned a trial judge’s decision to reject a sex discrimination claim before it got to trial. Deborah Merritt will now have a jury decide her claim that Old Dominion persists in applying sex stereotypes to its employees.
Merritt was a line haul driver for six years, taking freight to distant states. She wished to transfer to a local driving job so she could spend more time at home. The job is more physically demanding, since the driver does the loading and unloading of the freight. Its hours are more regular, though, and so some employees find it more desirable.
Only six out of the 3,100 local drivers at this company were female. Merritt also produced evidence that her supervisor said that “a girl should not have that position,” in part because the company was afraid women would be hurt on the job. Still, after several applications, and after making sure the men at the terminal did not mind working with a woman, Old Dominion placed her in the job. She did well. Six months later Merritt hurt her ankle and had to take some time to recover. When she was ready to return, she was put through a full-blown fitness test that is only given, occasionally, to new hires. She failed the test, but for reasons unrelated to her ankle injury and unrelated to her ability to perform the work. (For example, she was too short to reach a shelf.) The company fired her and replaced her with male workers.
In reversing the dismissal, the Fourth Circuit considered the pretextual policy of requiring injured workers (only on rare occasions) to take this test, and the statements by Merritt’s boss. It stated, “A plaintiff does not need a ‘smoking gun’ to prove invidious intent, and few plaintiffs will have one.” In this case, “evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction.” In his concurrence, Judge Davis emphasized that company tests must be applied in a neutral manner.