Exploring Gender Wage Disparity in Wyoming Employment
By Pat Smith
(Patrick D. Smith, BSc.ChE, MBA, JD)
Bridger Valley Wyoming; Charlotte Harbor Florida
America, the land of opportunity! It is a great country and one in which it is said that
opportunity is equal for all citizens. We are all different but should be treated the same. But
who are we? We are a thought process that has been placed within bodies. We rationalize our
world through our perceptions. We have discreet rationalizations that attempt to make sense of
our surroundings and we can link these rationalizations into memories. We appear to share some
“common ground” when it comes to the driving force behind our need to rationalize the world
around us. There are many theories to explain our behavior and through studies, common
themes have evolved. One approach to explain our behavior was developed by A.H. Maslow
who ranked our needs from physiological to self-actualization. Within this hierarchy are the
classifications of love and esteem. We have social needs as well as the need to survive. After we
meet the basic physiological needs of eating and clothing ourselves and the paranoid protection
of perceived safety, we move on to satisfying our social needs.1 While we share some common
threads in the “thought process”, our bodies are differentiated. Some of us are women and some
of us are men. We are of different sizes, shapes, colors and ages. Some of us have been
classified through other’s perceptions as being disabled or handicapped. Even though we are
different, our legislative and judicial systems have attempted to provide a mechanism so that we
will have an equal opportunity to obtain the economic rewards of our society without
discrimination with respect to most of these differences.
Title VII of the 1964 Civil Rights Act, and the Americans With Disabilities Act are
examples of legislation that attempts to correct for the differences of our bodies so that we will
have the same opportunities to the fruits of our nations economy. The Americans With
Disabilities Act prohibits discrimination on the basis of a disability with respect to job
application procedures, hiring, advancement, discharge, compensation, job training, and other
2
terms, conditions and privileges of employment.2 Title Civil Rights Act of 1964 contains 11
titles and bars discrimination in voting rights, public accommodations, education, employment
and the use of federal funds. Title VII deals with employment and prohibits discrimination based
on race, color, religion, sex and national origin. The legislative history of Title VII indicates that
the Congress's primary focus was racial discrimination not only in employment but with respect
to broader economic and social effects as well. When Title VII was first proposed, no protection
against gender-based discrimination was included. Representative Howard W. Smith (D.Va.)
felt that inclusion of sex would encourage other representatives to oppose the legislation and
reduce the probability of passage. 3
On the surface, these legislative acts might be perceived to provide a reasonable
protection that will allow equal employment opportunity regardless of the differences in our
bodies, however, the gender disparity is “alive and well” in Wyoming. One key indicator that
many use to illustrate the gender employment disparity is the comparison of Wyoming wages by
gender. These comparisons indicate that Wyoming is in position No.19 in the nation with
respect to male wages and is in position No. 44 with respect of female wages - resulting in the
greatest gender wage disparity in the nation. Activists have been quick to point out that older
women are especially hard hit with rising health care costs and an expected wage that is well
below a minimum living wage required in Wyoming cities. 4
The Wyoming gender disparity in wages has been partially explained by the higher
distribution of female workers in lower paying service and retail sector jobs, rather than in the
higher paying jobs in the manufacturing and mining industries. These distributions and
employers are summarized in Table 1 and Chart 1.
3
Table 1 - Largest Employers in Wyoming 1997
(Wyoming Department of Employment)
Sector
Company
Location
Mining
Amoco Production Company
Statewide
Mining
Amax Coal West Inc.
Gillette
Manufacturing
F M C Corporation
Green River, Kemmerer
Service
Grand Teton Lodge Co.
Moran
Retail Trade
Hamilton Stores Inc.
Yellowstone
Mining
Kerr Mcgee Coal Corp.
Gillette
Retail Trade
Mini Mart Inc.
Statewide
Mining
Pacific Minerals Inc. - Rock Springs
Rock Springs
TCPU
PacifiCorp
Statewide
Mining
Powder River Coal Co.
Gillette, Wright
Fire
Safecard Services
Cheyenne
Retail Trade
Safeway Stores 44 Inc.
Statewide
Manufacturing
Sinclair Oil Corporation
Statewide
Mining
Solvay Minerals Inc.
Green River
Retail Trade
Sugarland Enterprises
Sheridan, Casper, Cheyenne
Mining
Thunder Basin Coal Co.
Wright
TCPU
United Parcel Service Inc.
Statewide
Retail Trade
Wal Mart Associates Inc.
Statewide
Service
Wyoming Medical Center Inc.
Casper
Chart 1 - Wyoming Employment By Sector and Gender 1992-1997
(From Wyoming Department of Employment Reported Information)
60
40
Male
Female
30
20
Sector
4
Unclassified
Services
Fire
Retail Trade
Public
Admisisration
Wholesale Trade
TCIU
Manufacturing
Mining
0
Construction
10
Agriculture
Gender Employed (%)
50
Two questions that frequently arise when considering the gender wage disparity issue.
One question is why are employment positions that are traditionally identified with female
employees not paid as highly as those that are traditionally filled with male employees, and the
other is why female employees are not in the higher paying employment positions traditionally
held by male employees.
The first of these questions can be better understood through a three-tiered economic
analysis. At the lower end of the wage scale are service and retail employers of “mom and pop”
operations who cannot afford to pay more than a minimum wage. Typically, the retail or service
sector positions in these low revenue operations are near minimum wage, but the low wage
salaries are prevalent in this sector regardless of revenue level. The larger employers in this
sector compete for labor with the “mom and pop” operations while enjoying the economic
advantages of the economies of scale of a much larger revenue and customer base. According to
a human resource representative at one of the largest Wyoming retail trade employers, their
starting wage is $6.00 per hour while a seasoned employee could expect $8.00 per hour. This
large national retail operation is in a continued turnover situation with employee hiring and
termination an ongoing and routine process.
Between the low paying service and retail sector jobs and the high paying manufacturing
and mining jobs are intermediate paying positions that usually require some level of physical
effort. Typically, positions in this intermediate tier are oil field service or housing construction
jobs. Wage rates in this intermediate tier are between $10 - $20 per hour and a high employee
turnover is not uncommon. Employment here also may vary as employment requirements might
be seasonal or project dependent.
5
At the high end of the Wyoming wage scale are positions in the mining and
manufacturing sector. These employers are in the best economic positions to accommodate
attractive employee compensation programs. As an example, a recent investment in a one
million ton-per-year Trona (Soda Ash) refinery located near Green River, Wyoming required a
capital investment of approximately $100 million. The revenue stream from this facility is
approximately $100 million per year and after expenses for the cost of goods sold, enough
income results to justify the investment as well as the cost of capital and return required for the
investment. A facility like this requires approximately 200 employees. At a hypothetical wage
of $50,000 per year per employee the employee expense equates to an expense of $10 million or
10% of the revenue. A soda ash facility also uses approximately 6 million BTU’s of energy per
ton of product. During the past 5 years, the cost of natural gas to the Wyoming producer has
varied from $1.60 to over $8.00 per million BTU’s. This equates to a variance in expense
between $9.6 million to $48 million per year or 10 - 50% of the revenue. While the
manufacturer is in a competitive cost position, it is also able to compensate for external
influences of much greater magnitude than that of labor expense. These external factors include
energy expense, interest rates, transportation expense and a fluctuating product market. The
typical producer will attempt to maintain a minimum expense for labor but also realizes that a
production loss due to a labor interruption or human mistake may far exceed the impact of lower
wages. The Wyoming mining executive is willing to pay what it takes to maintain a reliable
operation. Typical wages in the Wyoming mining industry are from $16.50 to $25.50 /hr,
depending on position, with fringe benefits adding an additional 40%. These positions require
company-trained reliable employees without which a danger of a production interruption results.
The Wyoming mining industry has experienced low or non-existent employee turnover and a
6
surplus of applicants. One mining executive indicated that with the exception of a few
professional positions, no hiring had been conducted within the last seven years.
One might conclude that related to higher Wyoming wages is a commitment to provide
more physical effort and work in less desirable work environments than those in the retail and
service sectors. The effect of organized labor is also an important influence to consider in the
higher wages paid to employees in the manufacturing and mining industries. These industries
are the prime economic targets that are best able to provide better compensation and benefits
packages for unionized employees. Union-free facilities avoid third party management
involvement by maintaining their benefits packages in a competitive position with respect to
nearby unionized facilities. It is not economically possible for highly competitive and revenue
limited “mom and pop” retail or service sector employers to compete with the economies of
scale within the mining and manufacturing sectors. This environment has resulted in a multi-tier
employment market with low-paying high turnover jobs in the service and retail sectors and
high-paying low turnover jobs in the mining and manufacturing sectors.
The second question of why there are fewer female employees in the high paying
employment sectors is more complex and requires careful analysis as well as assumption. In
order to better understand this question several of the Wyoming top employers were contacted
and asked for their perceptions. 5 Many of these executives talked freely but also asked not to be
identified. While no firm data supports their analysis, several Wyoming industry executives
have expressed explanations that range from a lack of a qualified applicant pool to recent
economic conditions that have frozen hiring for several years. When asked why women might
not apply for manufacturing or mining positions, explanations from executives, included
7
perceptions that women might not desire to work odd shift schedules, leave their families or
children at odd hours, or work in the less desirable conditions of a dusty or dirty environment.
Some of these same explanations are shared by social scientists who suggest that
employment gender disparity is a logical extension of actual gender differences. These positions
are supported on the assumption that the gender gap is the product of biological sex differences
in personality and temperament. Central to the argument is that evolutionary theory predicts that
men will tend to exhibit greater status-seeking, competitiveness, and risk taking than women, and
that women will exhibit more nurturance and affiliative behavior. These theorists suggest that if
women make the same kinds of human-capital investment and occupational choices as men, their
compensation will be much more similar to men’s. They also suggest that preventing employers
from giving higher pay to employees who work more hours, have greater job-related training, or
occupy riskier jobs seems foolish. 6,7
A question that begs to be answered is whether women do not apply to mining or
manufacturing positions because of a perception of demanding physical requirements. While
some of the largest Wyoming employers clearly offer physically demanding construction
employment, many mining and manufacturing facilities can eliminate demanding physical
requirements through investment in automation and alternative processes. The physical
requirements within surface mining refineries and chemical production facilities are primarily
related to operating valves with levers or hand-wheels, unplugging process streams or bins with
sledge hammers and general cleanup (shoveling). All of these activities can be eliminated or
greatly reduced through the installation of devices that reduce the physical effort or entirely
eliminate physical effort through automation. Manufacturing and mining facilities are typically
labor intensive because history plays a large part in their design. These industries have relied on
8
past requirements of design as a criteria for future design. Labor intensive operations are usually
only modified when there is a perceived safety problem or when it is economically justified with
increased production or decreased costs. Capital investment in many facilities is justified by a
project net present value, internal rate of return or years-pay-out criteria. These methods are
used to evaluate the economic worth of a project by comparing the benefits to the costs over the
expected life of the project. Benefits that reduce labor requirements are usually justified through
a reduction in the workforce, that is a loss in jobs and a savings in employment wages. In each
of these scenarios the project must pay for itself. As long as strong employees are available in
the workforce, there is little to no incentive to modify a facility or to reduce the physical
requirements.
None of the executives surveyed noted physical requirements as a contributing criteria of
the gender imbalance. The question of “physical effort” to perform an employment task is one to
which employers have become very sensitive after the passage of the ADA. Many of
Wyoming’s top employers evaluate employment positions with required physical criteria such as
being able to walk up and down steps, carry a 50 lb bag, etc. Some employers request that a
potential employee submit to a “functional capacity” test after an offer is made to insure the
prospective employee’s ability to perform the position function. Although the survey was not
all-inclusive, the harshest physical requirements mentioned from Wyoming employers in both
the retail-trade and mining sectors were nearly identical with one exception. For those who had
requirements they were: (1) the ability to lift and carry 50 lbs. and (2) the ability to climb ladders
and walk up or down stairs. One top Wyoming employer in the mining sector was a notable
exception. In addition to the standard 50 lb. lift and stairs climbing criteria, this employer also
had requirements of hammering with a 12 lb. hammer for 2 minutes, turning an 18 inch diameter
9
wheel with a 50 lb. resistance for 1 minute, and a “rod push-pull” simulation with a 35 lb.
resistance for 2 minutes. This employer also requires an employee functional capacity
evaluation after an offer of employment is made. This employer felt that, while women were not
as strong as men, their functional capacity criteria would not discriminate against women
because they tested two women who worked in clerical positions within their facility and both
passed without problems. No one surveyed mentioned job requirements that needed physical
commitment or effort beyond the 50 lb. level.
The perception that women were generally not as physically strong as men was prevalent
in top Wyoming employers as well as organizations performing functional capacity evaluations
for these employers. No one contacted within these groups could provide any information to
support these perceptions. When asked if there were any guidelines to justify when capital
should be expended to reduce physical effort, or how much effort could be expected from an
employee before an automated device should be employed, none of the mining or manufacturing
representatives surveyed had an answer. The same question was asked of an engineering firm
responsible for the recent design of a Wyoming mining facility. The engineering project
manager indicated that the criteria to determine physical effort was provided by individual
equipment suppliers. One equipment supplier contacted, a major United States valve
manufacturer, did indicate that engineering design figures were an “80 pound rim-pull” for a
man and a “40 pound rim-pull” for a woman. No data could be provided to support these
figures, and it was suggested by a senior design engineer that the strength assumptions were
developed through experience.
The issue of determining the physical strength required to perform an employment
function and its possible discriminatory impact under Title VII was central to the decision in
10
Dothard v. Rawlinson.8 Rawlinson, an applicant for an Alabama prison employment position,
was rejected when she failed to meet employment requirements of a minimum height of 5 feet 2
inches and a minimum weight of 120 pounds.9 The Court recognized that there was no evidence
that correlated the height and weight requirements with the requisite amount of strength thought
essential to good job performance.10 On the basis of national statistics, that compared the height
and weight of men and women, it was argued that Alabama's statutory standards would exclude
over 40% of the female population but less than 1% of the male population.11 The Court found
that with respect to such standards, Rawlinson had made out a prima facie case of unlawful sex
discrimination, which the state had failed to rebut. 12
In Rawlinson, a statistical analysis was used to illustrate the relationship of height and
weight employment requirements to a national data pool in order to determine the effects on the
selected population.13 The normal statistical relationship to human physical features has been
recognized for over a century. Normal density curves are symmetric, bell-shaped curves that
have the following important properties:
1. A specific normal curve is described by its mean and the standard deviation.
2. The mean determines the center of the distribution. It is located at the center of
symmetry of the curve.
3. The standard deviation determines the shape of the curve.
It has been accepted that one type of normal data is that of the physical measurements of many
members of a biological population. For example, work by Karl Pearson resulted in the
measurement of 2000 Hungarian skulls, which clearly illustrated the fit of the measurements to a
normal density curve.14 Other physical measurements that have been noted to follow a normal
distribution are individual’s height, length of pregnancies (266 days with a standard deviation of
11
16 days) and the circumference of a soldier’s head (22.8 inches with a standard deviation of 1.1
inches).15 These relationships have analytical significance and possible legal value when used
to explain normal from abnormal variance or when seeking a probability of an occurrence. As
an example, utilizing the measurements of a soldier’s head it would be expected that 95% of all
soldiers would have heads that measured between 20.6 to 25.0 inches or within 2 standard
deviations from the average head circumference of 22.8 inches.
Using a statistical analysis in graphical form to illustrate gender physical difference,
Illustration 1.0 demonstrates the impact of an employment criteria that would require an
employee to be at least 177.9 cm. (5 feet10 inches) in height. While this is the average height of
a 40 year-old white male, this height used as an employment criteria would eliminate 99% of the
40 year-old females in the population. Illustration 1.0 provides a visual concept of this
relationship and was based on studies by the National Health and Nutrition Examination Survey
(NHANES). The NHANES survey, conducted by the National Center for Health Statistics Centers for Disease Control and Prevention has been designed to collect information about the
health and diet of people in the United States and contains approximately 40,000 samples. 16
12
Illustration 1.0 - Illustration of Gender Difference in White 40 Year-Old Persons
(Data from the National Health and Nutrition Examination Survey- National Center for Health Statistics)
Normal Population Distribution
40 Year-Old White Male Height (cm)
Average Height of a 40
Year-Old White Male
(177.9 cm.)
Normal Population Distribution
40 Year-Old White Female Height (cm)
99% of 40 Year-Old
Females are Shorter
Than The Male Average
Height
While physical parameters over which we have no control appear to be evenly distributed
around the mean, other physical parameters that we can control do not necessarily follow a
normal distribution. These relationships become skewed. The graphs in Illustration 2.0 relate the
effects of personal influence on nature’s predictable randomness.17 Here, the white female
height is not controllable and appears normally distributed, while weight can be influenced and is
not normally distributed.
13
Illustration 2.0 – Comparison of Height and Weight Distributions in White Females
Illustration of normal distributions of height in
white female persons as compared to non- normal
weight distributions in white female persons.
(Chart data produced with permission from Halls.Md)
Comparison of controllable
distributions vs. noncontrollable distributions
through the 95 percentiles
Much less data is available on physical strength. A person’s strength is, however, similar
to a person’s weight and can be controlled by activity like strength training and exercise
programs. Are women as strong as men? In Dothard v. Rawlison an attempt was made to use
height and weight requirements as an indicator of and individual’s strength. The Court correctly
recognized that height and weight requirements don’t necessarily relate to strength and it was
determined that employment height and weight requirements may have a disparate effect with
respect to gender.18 In order to answer the question as to whether men are stronger than women
one might look at sports records relating to strength. Olympic records provide such an analysis
but these records do not come from large samples that represent the general population. These
records are consistent however, and indicate that men hold records that are of 30-40% more
14
achievement than the records of women athletes. Illustration 3.0 relates the extreme end of the
human strength distribution of Olympic records by gender.19
Illustration 3.0 – A Comparison of Olympic Weight Lifting Records by Gender
Olympic Weight Lifting Records
450
Amount Lifted (kg)
400
Men Lift 20-40% More Weight
350
300
250
200
150
100
50
55
60
65
70
75
80
85
90
95
100
Body Weight (kg)
Womens Record
Mens Record
Olympic Weight Lifting Records - Snatch
190
180
Amount Lifted (kg)
170
Men Lift 35-43% More Weight
160
150
140
130
120
110
100
50
55
60
65
70
75
80
85
90
95
100
Body Weight (kg)
Womens Record
Mens Record
It is interesting to note that there appears to be a linear relationship between body weight
and weight lifting ability (strength) as was suggested in Rawlinson; however, the Rawlinson
argument utilizes weight criteria and fails as this is a controllable aspect of our bodies.20 Prison
guard applicants are not trained Olympians and if common sense prevails one would consider
body weight as being as reflecting varying combinations of muscle and fat.
The relationship of greater interest is that of the apparent strength difference between
men and women. Assuming that this relationship is true of the labor force, a logical extension is
15
that perhaps in an industry, like mining, decisions of investment have been made with respect to
designs that result in facilities for a "strong man" and those decisions have resulted in facilities
that potentially exclude equal employment opportunity for women.
An employer who offers a position as a manual construction laborer probably can do very
little to reduce the physical effort required to fulfill the work requirements. Under Title VII there
is no burden placed upon the employer to expend effort to modify the workplace to a more
friendly environment for women as long as the employment criteria are a business necessity.21
In contrast to the judicial interpretations of Title VII, under the ADA an employer is asked to
make a reasonable accommodation to employ an applicant whose abilities would generally be
acceptable while not creating an undo burden on the employer.22 If the employer were a
corporation an undue burden would most probably be interpreted as an unreasonable loss on
return on investment for the business owners. In Vande Zande v. State of Wisconsin Department
of Administration it was determined that the lowering sinks in the workplace and providing
equipment to allow an employee to work form the home was an undue hardship.23 In Vande
Zande, the Court stated that employers could prove undue hardship only if the accommodation
(1) conferred no benefit, (2) conferred less benefit than cost, or (3) would impoverish the
employer.24
Under Title VII an employment practice can be found to be discriminatory if it has an
adverse impact. Adverse impact, also referred to as "disparate impact", refers to employment
practices which, while neutral on their face, have the effect of excluding protected groups, even
if there was no intent to discriminate. As an example, in Griggs v. Duke Power Co. a power
plant's requirement of high school diplomas and standardized testing was found to bar blacks
from employment.25 If an employer's practice is found to have an adverse impact, the employer
16
may validate the practice by proving the employment practice measures actual job performance
or business necessity. In a Title VII "disparate impact" claim, the plaintiff must present a prima
facie case by proving that the work force's composition does not reflect the qualified labor force,
and that the disparity was caused by specific employment practices. The burden of proof then
shifts to the defendant employer to prove that its employment practices have legitimate goals. If
the employer proves that the practices have legitimate goals, then the plaintiff can still prevail by
proving those legitimate goals can be met through practices with less adverse impact, without an
undue burden on the employer. The employer must then adopt such alternative practices, or
concede its intent was to discriminate.26 Typically, discriminatory effects are provable by
statistical analysis showing that a protected class are either not hired, or retained only in
undesirable jobs. The statistical comparison must be between the defendant employer's labor
pool and the "relevant labor market". As an example in Hazelwood School District v. United
States the court recognized that the relevant labor market was all certified teachers and not the
general population. In Hazelwood, the Court determined that statistical analysis of applicant
flow data, or which applicants were hired as compared to those rejected is sufficient to establish
an adverse impact. The Court also endorsed the use of statistical standard deviations to test
statistical significance, which can indicate whether an employment practice has an adverse
impact.27 Where there is a statistical anomaly, such as a low percentage of a protected class,
statistical significance attempts to predict the probability that this anomaly was caused by design
rather than by chance. If an employer's labor pool is only 5% of a protected class, and analysis
reveals this is "statistically significant at the 90% level," it means there is a 90% chance this
disparity was not a random occurrence. The Supreme Court has not indicated a level of
statistical significance that is legally significant but has adopted a "Four-Fifths Rule of Thumb"
17
instead. Under the EEOC Guidelines, a hiring practice is presumed to have adverse impact if the
selection rate for any protected group is less than four-fifths of the selection rate for the applicant
pool.28 In Wyoming, Title VII and its interpretation offer little to promote any change in the
employment wage disparity as women simply do not apply for the high paying positions that are
available. There is no requirement, however, that a statistical showing of disproportionate
impact must always be based on analysis of the characteristics of actual applicants.29 In
Teamsters v. United States, the Court determined that the application process itself might not
adequately reflect the actual potential applicant pool, since otherwise qualified people might be
discouraged from applying because of a self-recognized inability to meet the very standards
challenged as being discriminatory.30
We as a society are like computers programmed through our software system of
legislation. When a segment of our society does not perform to our overall expectations, we as a
society change the rules as needed to meet our expectations of acceptable behavior. Industry
uses legislation as its guideline of our expectation of acceptable behavior and as such it is not
acceptable behavior to spend monies on management agendas that are not justified in a return to
the business owners. Industry managers would not be representing their owners if monies were
spent to be safer or cleaner than needed beyond the legislative compliance requirements.
Sometimes monies are spent on management agendas beyond legislative compliance levels, but
these expenditures are justified through other economic benefits of improved employee morale,
increased employee performance, improved community relationships or reduced risk of future
expense. It is through the pressure of legislation and our judicial system that our industry’s
employees now have safety glasses, dust masks, equipment guards, and employee benefits.
These changes have not come without expense to the owners of business. What is the reasonable
18
burden to apply to industry to meet our social expectations? Through the Americans with
Disability Act we have asked employers to make reasonable accommodations so that disabled
citizens are able to share in our nation’s economic opportunities. If we assume that men and
women are different, both socially and physically, would it not be appropriate to ask for the same
kind of reasonable accommodation?
The Wyoming mining or manufacturing operator whose revenue exceeds hundreds of
millions of dollars per year has indicated that the reasons that women occupy less that 5% of the
work force is that women don’t apply. Explanations for this small percentage of women
employees include perceptions that women don’t want to work in a dirty environment, women
don’t want to be away from their families at odd hours, women might be intimidated by the
physical requirements, and women might be intimidated by the male dominated environment.
All of these perceptions can be corrected through expenditure or a change in procedure.
As an example, more than one of Wyoming’s top mining operations utilizes a
departmentalized organizational structure. As a position becomes available within the
organization, “in house” employees are allowed to transfer to fill the vacant position before
someone from outside the organization is hired. These companies maintain small utility
departments or individualized positions to provide “hard labor” where needed within the overall
organization. These hard labor positions are the least desirable and dirtiest positions within the
organization. They are also the positions that are typically offered to the new applicant, after the
“in house’ transfers have been accommodated creating vacancies in the least desirable jobs.31 Is
it unreasonable to ask an employer with less than 5% women in their workforce to modify their
transfer and hiring practices so that the positions offered to new employees would not be the
organization’s dirtiest, least desirable positions, that require the most physical effort? Is it a
19
business necessity to fill positions at plant computer control terminals with transfers from a
labor- intensive least desirable position?
There are also many ways to address the concerns that women might have with working
shift schedules associated with a traditional mining or manufacturing operation. Shift
differentials are often paid to employees to work at less desirable times and multitudes of
combinations of schedules are possible. A change to allow employees to work at preferred times
could even be cost neutral with more desirable schedules paying less than the less desirable
schedules. Daycare could also be provided. Is this an unreasonable burden to an employer to
allow a more flexible schedule or daycare if it brings women into the workforce?
Issues of physical requirements can be accommodated through installation of automated
equipment and equipment that provides mechanical advantage. In a company that has $300
million in assets and revenue in excess of $200 million per year, is it unreasonable to require a
“40 lb. rim-pull” instead of an “80 lb rim-pull” on installed equipment? In a company that meets
legislative safety requirements is it reasonable to expect an incremental capital expenditure to
meet the expectation’s of a “woman’s clean” workplace?
The answers to these questions involve the interaction of many influences. Societal
pressure results in legislation that sets the boundaries of employer conduct and what is
considered as acceptable business behavior changes with the passage of time. Business
managers must respond to new legislative boundaries in order to protect their owner’s
investments. In this ever changing environment workers have enjoyed the benefits of improved
safety and health standards and even individuals with disabilities are accommodated in positions
heretofore thought to be beyond their capabilities. These changes have in-turn been paid for by
business owners. A manager who implements an expense beyond the risk of the legislative
20
boundaries violates a duty to the business investor and owners. The proposed questions are
complex and the answers unclear. What is clear is that Wyoming has the highest gender wage
disparity in the nation and there is no incentive to change.
21
1
Allen R. Cohen…[et al.], Effective Behavior in Organizations, The McGraw-Hill
Companies, Inc. (1995)
2
Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213
3
See Jo Freeman, How "Sex" Got into Title VII: Persistent Opportunism as a maker of Public
Policy, 9 J.L. & Equality 163 (1991).
4
Tara Westreicher, Wage Outlook Dreary, Casper Star Tribune, Feb. 13, 2003
5
Telephone interviews were conducted with employers listed as the largest Wyoming
employers by the Wyoming Department of Employment. Typical respondents were in
positions of human resources management (Human Resources Manager) or overall facility
management (Plant Manager / Vice President). Questions relating to functional capacity
testing were sometimes directed to subordinate management personnel with facility safety
and training departments. Key questions included (1) How many women employed in
manufacturing or production positions. (2) If a gender disparity – why? (3) Functional
capacity requirements for employment? Equipment manufactures and national engineering
firms were asked about strength or physical effort criteria utilized to determine when
equipment automation would be deemed to be appropriate
6
Kingsley R. Browne, Sex and Temperament in Modern Society: A Darwinian View of the
Glass Ceiling and the Gender Gap, 37 Ariz. L. Rev. 971,974, 976-977, 979-981, 983-984,
1016, 1065-1066, 1071, 1081-1082 (1995)
7
See Joan Williams, Do Women Need Special Treatment? Do Feminists Need Equality, 9 J.
Contemp. Legal Issues 279 (1998)
8
Dothard v. Rawlinson, 433 U.S. 321, *; 97 S. Ct. 2720, **; 53 L. Ed. 2d 786, ***; (1977)
9
Id. at 327
10 Id. at 331
11 Id. at 330
12 Id. at 339
13 Id. at 330
14 Craniological notes, Biometrika, June 1903, P. 344.
15
David S. Moore, Statistics Concepts and Controversies, W.H. Freeman and Company.
(1997)
22
16 See Internet source – www.MHANES http://www.cdc.gov/nchs/nhanes.htm
17 See Internet source – www.Halls.md
18 See, e.g., Dothard v. Rawlinson, 433 U.S. 331 (1977)
19 Internet source summarizing current Olympic weight lifting records
http://www.olympic.org/uk/utilities/reports/level2_uk.asp?HEAD2=8&HEAD1=5
20 See, e.g., Dothard v. Rawlinson, 433 U.S. at 331. In Rawlinson, the court recognized that the
appellants had produced no evidence correlating the height and weight requirements with the
requisite amount of strength thought essential to good job performance. The assertion that
body weight and strength are related is supported in Illustration 3.0 but fails when
considering that weight and strength are both controllable physical features. Illustration 2.0
summarizes the non-normal data distribution associated with weight. Unless additional
statistical data were included to determine if an individuals weight was fat or muscle no
determination between an individuals weight and strength can be logically concluded.
Body weight and strength appear to be a
linear relationship in Olympic Athletes but
caution must be exercised when carrying this
relationship to the general population. Unlike
an employment height requirement, weight
and strength are both controllable and do not
have normal distributions.
Olympic Weight Lifting Records - Snatch
190
Amount Lifted (kg)
180
170
160
150
140
130
120
110
100
50
55
60
65
70
75
80
85
90
95
100
Body Weight (kg)
Womens Record
Mens Record
21 Codified at 42 U.S.C. § § 2000e through 2000e-17 (1994)
23
22 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 126. EQUAL
OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES EMPLOYMENT. Codified
at 42 USCS § 12112
23 Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 (1995)
24 Id at 543
25 Griggs v. Duke Power Co., 401 U.S. 424 (1971)
26 42 U.S.C §§ 2000e Sec 703
27 Hazelwood School District et al. v. United States, 433 U.S. 299 (1977)
28 29 CFR 1607.4
29 See Griggs v. Duke Power Co., 401 U.S. 424, 430-431 (1971)
30 See Teamsters v. United States, 431 U.S. 324, 365-367 (1977)
31 Explanation diagram of hiring within Wyoming departmentalized organizational structure
Employment positions to operate a 24/7 facility with
two twelve-hour shifts or three-eight hour shifts.
Positions in mining or manufacturing are not labor
intensive but may need a substantial physical effort to
operate equipment from time-to-time.
Employee Leaves
1
Crew A
Crew B
Crew C
Crew D
Position 1
Position 2
Position 3
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9
Position 10
Position 1
Position 2
Position 3
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9
Position 10
Position 1
Position 2
Position 3
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9
Position 10
Position 1
Vacant
Position 3
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9
Position 10
2
3
Utility Position 1
Utility Position 2
Utility Position 3
Utility Position 4
4
Utility Positions are labor intensive
environmentally unfriendly "least
desired positions"
Employee Hired
1. Employee in position 2 on Crew D leaves.
2. Qualified employee is allowed to move from Crew B position 6 moving the vacancy
to Crew B - promoting from within the organization or union seniority dictates.
3. Qualified employee is moved from a Utility Position to feel the vacancy on Crew
Position offered to the public is least desirable position requiring labor intensive
effort in an unfriendly environment.
4. Women do not apply for these positions.
24