In Merritt vs. Old Dominion Freight Line the plaintiff claimed that the company discriminated by refusing to make her a short-haul truck driver. She argued that she was denied positions twice, when she was more qualified than the males who were hired. Then after suffering an injury on the job, she claimed the company used this injury as an excuse to terminate her as being “unfit for duty.”
Unfortunately for Old Dominion, the plaintiff’s (male) manager had made frequent statements such as “This is no place for a woman”. Eventually the manager, who had already made it known that he didn’t like women driving trucks, fired her when she failed the fit-for-duty exam which was used primarily for pre-hire physicals. Not only was the exam far too broad in scope for her injury, the company did not give it to many of the men who suffered similar injuries.
In discussing the return-to-work exam, the court stated:
“We begin by acknowledging that, if indeed, Old Dominion had such a policy (to conduct a full exam of all return-to-work employees) and faithfully abided by it, that fact would, as Old Dominion suggests, be a neutral and legitimate business practice. Old Dominion has understandable safety concerns, especially since its employees are responsible for driving large trucks and carrying heavy freight. A policy of the sort Old Dominion claims to have is sensible, because it helps prevent an injured employee from further aggravating an injury, thereby jeopardizing the eventual recovery; ensure that an employee’s job performance is not so impaired as to endanger public safety, diminish employee morale, or generate customer complaints; and limit Old Dominion’s workers compensation claims and tort liability. Moreover, it is not to say what policies a company should or should not adopt, if the policies it does adopt are gender-neutral.”
As the court stated, the problem with the policy lies not in theory but in practice.
Lesson: Whether it’s an all-male truck-driving environment or an all-female nursing environment, employers cannot create smokescreens in order to discriminate. In this case, there were no HR checks and balances on the manager’s decision to fire the plaintiff. It’s a good idea to have a policy, enforce it uniformly, and make sure someone else in the organization (preferably the HR department, if you have one).signs off on all termination decisions.