Are You Using Employment Tests Fairly? The EEOC's Latest Ruling on Discrimination in Employment Testing and Selection Procedures

Conducting background checks on prospective hires is an essential human resources function that, when done properly, can ensure that the right person for the job is hired. But what about administering cognitive tests aimed at assessing knowledge and reasoning? Or requiring medical examinations or tests of physical ability to establish job fitness? Are such screening devices legal? Many employers may not be aware that the use of these tests could result in charges of discrimination and result in costly penalties, not to mention damage to an organization’s reputation.

There has been increased concern over discriminatory employment testing and selection procedures in recent years. Since 2003, the number of claims alleging discriminatory testing and selecting practices has more than quadrupled. To address the problem, the U.S. Equal Employment Opportunity Commission (“EEOC”), in December 2007, issued a fact sheet explaining how federal anti-discrimination laws may apply to employer-administered tests and other selection procedures used for screening job applicants and promoting employees. The fact sheet describes the most common types of employer-administered tests and selection procedures used in today’s workplace, including cognitive tests, personality tests, sample job tasks, English proficiency tests, medical examinations, credit checks, and criminal background checks; the EEOC also explains how these tests may violate various federal anti-discrimination laws.

Discrimination in employment testing and selection procedures is prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. And while the EEOC notes that “the use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job,” the Commission also points out that in many cases, “the use of these tools can violate the federal anti-discrimination laws if an employer uses them to discriminate based on race, color, sex, national origin, religion, disability or age.”

While many employers may not intend to discriminate, too often their actions or procedures turn out to be discriminatory in their effect, and federal law prohibits employment tests or procedures that result in “disparate treatment” or “disparate impact.” For example, in a recent EEOC enforcement action, a cognitive test that was used by an employer to measure verbal, numerical, and spatial reasoning was found to have a statistically significant disparate impact on African American applicants. In this case, it was found that less discriminatory selection procedures were available to the employer and would have reduced the disparate impact on African Americans and provided this population an opportunity for employment without bias. However, because the employer chose not to implement the less discriminatory procedures, the employer was required to pay $8.55 million in monetary relief as a result of a court-approved settlement. The lesson for employers: Even a practice as common as testing prospective employees may carry a hefty price if it is found to be discriminatory.

Another common type of discrimination involves tests or screening tools that discriminate on the basis of age or disability. Sometimes, even facially neutral tests or selection procedures may have a disparate impact on a protected class of individuals. In one case, applicants with recognized learning disabilities were not given the necessary accommodations for reading during a pre-employment test for unskilled manufacturing jobs. In settling the case, the EEOC required that the employer provide a reasonable accommodation when administering the test to applicants with a documented disability who request a reader. Again, the lesson for employers is that they must be careful to safeguard against the potential discriminatory effect of apparently neutral tests.

Learn about employment liabilities and prevent workplace-related claims of discrimination, sexual harassment, and wrongful termination.

In an effort to offer guidance to employers on this potentially problematic employment practice and prevent discrimination, the EEOC has set forth a number of “best practices” for employers to follow when using these employment tests or screening devices. The EEOC’s recommendations are as follows:

Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the Uniform Guidelines on Employee Selection Procedures.
If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

Employment screening and selection procedures can be effective risk management devices that provide accurate measurements of job skills, reduce turnover, and increase productivity and efficiency. However, tests and procedures for identifying the best candidate for a position should never be stumbling blocks that unwittingly prevent the hiring of such candidates nor should they be used to discriminate against any individual seeking employment. Following the EEOC’s best practice recommendations and making sure that your organization implements its own non-discriminatory human resources policies should be standard procedure for employers seeking to avoid costly legal conflict.

Provided by: HRTutor.com and The Human Equation Email this article Are You Using Employment Tests Fairly? The EEOC's Latest Ruling on Discrimination in Employment Testing and Selection Procedures By: Tiffany Parlante, Esq. Risk Management Group, Setnor Byer Insurance & Risk
Conducting background checks on prospective hires is an essential human resources function that, when done properly, can ensure that the right person for the job is hired. But what about administering cognitive tests aimed at assessing knowledge and reasoning? Or requiring medical examinations or tests of physical ability to establish job fitness? Are such screening devices legal? Many employers may not be aware that the use of these tests could result in charges of discrimination and result in costly penalties, not to mention damage to an organization’s reputation. There has been increased concern over discriminatory employment testing and selection procedures in recent years. Since 2003, the number of claims alleging discriminatory testing and selecting practices has more than quadrupled. To address the problem, the U.S. Equal Employment Opportunity Commission (“EEOC”), in December 2007, issued a fact sheet explaining how federal anti-discrimination laws may apply to employer-administered tests and other selection procedures used for screening job applicants and promoting employees. The fact sheet describes the most common types of employer-administered tests and selection procedures used in today’s workplace, including cognitive tests, personality tests, sample job tasks, English proficiency tests, medical examinations, credit checks, and criminal background checks; the EEOC also explains how these tests may violate various federal anti-discrimination laws. Discrimination in employment testing and selection procedures is prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. And while the EEOC notes that “the use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job,” the Commission also points out that in many cases, “the use of these tools can violate the federal anti-discrimination laws if an employer uses them to discriminate based on race, color, sex, national origin, religion, disability or age.” While many employers may not intend to discriminate, too often their actions or procedures turn out to be discriminatory in their effect, and federal law prohibits employment tests or procedures that result in “disparate treatment” or “disparate impact.” For example, in a recent EEOC enforcement action, a cognitive test that was used by an employer to measure verbal, numerical, and spatial reasoning was found to have a statistically significant disparate impact on African American applicants. In this case, it was found that less discriminatory selection procedures were available to the employer and would have reduced the disparate impact on African Americans and provided this population an opportunity for employment without bias. However, because the employer chose not to implement the less discriminatory procedures, the employer was required to pay $8.55 million in monetary relief as a result of a court-approved settlement. The lesson for employers: Even a practice as common as testing prospective employees may carry a hefty price if it is found to be discriminatory. Another common type of discrimination involves tests or screening tools that discriminate on the basis of age or disability. Sometimes, even facially neutral tests or selection procedures may have a disparate impact on a protected class of individuals. In one case, applicants with recognized learning disabilities were not given the necessary accommodations for reading during a pre-employment test for unskilled manufacturing jobs. In settling the case, the EEOC required that the employer provide a reasonable accommodation when administering the test to applicants with a documented disability who request a reader. Again, the lesson for employers is that they must be careful to safeguard against the potential discriminatory effect of apparently neutral tests. *Learn about employment liabilities and prevent workplace-related claims of discrimination, sexual harassment, and wrongful termination.* In an effort to offer guidance to employers on this potentially problematic employment practice and prevent discrimination, the EEOC has set forth a number of “best practices” for employers to follow when using these employment tests or screening devices. The EEOC’s recommendations are as follows: Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability. Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the Uniform Guidelines on Employee Selection Procedures. If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group. To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored. Employment screening and selection procedures can be effective risk management devices that provide accurate measurements of job skills, reduce turnover, and increase productivity and efficiency. However, tests and procedures for identifying the best candidate for a position should never be stumbling blocks that unwittingly prevent the hiring of such candidates nor should they be used to discriminate against any individual seeking employment. Following the EEOC’s best practice recommendations and making sure that your organization implements its own non-discriminatory human resources policies should be standard procedure for employers seeking to avoid costly legal conflict.
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