Avoiding Sex Discrimination In and Out of the Packing Industry

Michael J. Hogan

Michael J. Hogan is managing partner in the Fresno office of Littler, Mendelson, Fastiff, Tichy & Mathiason. He has represented agricultural employers in all aspects of labor and employment law for over 19 years.

In recent years several class action sex discrimination complaints have been filed against firms that pack agricultural products in California. Claimants have alleged that employers are violating the 1964 Civil Rights Act, as amended in 1991 (see Labor Management Decisions, Summer 1992, for a review of the 1991 legislation), and the California Fair Employment and Housing Act. Some of these lawsuits have resulted in settlements costing in excess of a half million dollars, including back wages and attorney's fees for representation of the women in the class.

A fundamental condition giving rise to these cases is the huge disparity between the proportions of women and men in various job classifications within the industry. For example, nearly all packing and grading positions are occupied by women, whereas nearly all other types of job - including general labor, tailoff, setoff, shipping, receiving, forklift driving - are held predominantly by men. And the "women's jobs" are often paid at lower wage rates than the others. Even when the classifications have comparable hourly wage rates, men tend to earn more on an annual basis, because their jobs typically require more overtime, are laid off last after a season, and are recalled first when a new season begins.

It is important for employers throughout agriculture, not only in the packing industry, to recognize that gender does not dictate performance potential and to provide job opportunities on a sex-neutral basis. Presumptions that women are only interested and able to perform such work as packing and grading, and that men are best suited for such tasks as machine maintenance and general labor, can lead to inefficient use of personnel, substantial liability, or both.

Employers should consider the following seven steps if they want to provide job opportunities to employees and new applicants in a nondiscriminatory manner.

1. Review your employment application form to ensure that it lists all classifications of available jobs, so that applicants can express their preferences without implicit restriction.
2. Provide applicants with position descriptions that completely describe essential functions as well as the physical, mental, and other requirements for performing them.
3. Allow all applicants the chance to demonstrate ability to perform a job. Do not assume that women are unable to lift heavy objects, operate equipment, or perform other traditionally male-dominated jobs. Allow men the opportunity to apply for and show their skill in such jobs as grading and packing.
4. Provide women with training and informal opportunities to learn "male" jobs.
5. Review jobs in the general labor classification to see if they can be divided or redefined into two groups differentiated by strenuousness of tasks included. Jobs with stringent physical requirements that may have previously deterred women from seeking general labor positions could fit in one new classification, and other jobs (e.g., forming boxes, picking up fruit) in the second. Since performance of both types of job is needed over similar periods, the ultimate effect would be to increase women's opportunities for overtime work and longer seasonal employment.
6. Maintain copies of completed job applications for at least three years, to substantiate retrospective reviews of nondiscriminatory hiring practices.
7. Offer promotions and transfers on a sex-neutral basis, and keep copies of the announcements that have been posted to inform employees of these opportunities when available.

Violent Incident at Packing Plant

A produce packer walked into a Salinas plant and fired several shots from a .30-caliber, high-powered rifle, killing a forklift driver and wounding another man. It was reported that the packer had been obsessed with a female worker, who had ignored his advances, and that he had been told by other employees to leave the woman alone (The Packer, September 26, 1994). The incident provides tragic confirmation of the seriousness of the problem discussed by Scott Wilson in "Preventing and Coping with Workplace Violence" (Labor Management Decisions, Summer 1994).

Back to: Contents | LMD Main Page | APMP Home