Employment Tests and Selection Procedures: Are You Following the EEOC’s Best Practices?
 
March 5, 2008
 
Louis Santiago - Portland

In December 2007, the EEOC issued a fact sheet that discusses “best practices” relating to the use of employment tests and other selection procedures. Employers should ensure that their use of tests and selection procedures to screen applicants for hire and employees for promotions complies with the EEOC’s guidelines.

Background

Employers use many different types of tests and selection procedures including cognitive tests, physical ability tests, personality tests, integrity tests, medical examinations, credit checks and criminal background checks. In recent years, there has been an increase in employment testing due in part to post 9-11 security concerns, as well as concerns about workplace violence, employee safety and employer liability. Also, the widespread adoption of online job applications has motivated employers to seek efficient ways to screen large numbers of online applications in an objective way.

The surge in employment testing has been followed by an increase since 2003 in the number of EEOC discrimination charges containing allegations of unlawful employment testing and exclusion of individuals based on credit reports, criminal background checks and other selection procedures. This upward trend is likely to continue.

Federal EEO Laws

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA) and the Age Discrimination in Employment Act of 1967 (ADEA) prohibit the use of discriminatory employment tests and selection procedures. Employment tests or selection procedures can violate federal anti-discrimination laws if an employer uses them to intentionally discriminate against members of a protected class (disparate treatment discrimination) or if a test or procedure, although neutral on its face, disproportionately disqualifies members of a protected class (disparate impact discrimination).

Disparate Impact Discrimination

If a test or selection procedure has a disparate impact based on race, color, religion, sex, or national origin, an employer may violate Title VII unless it can show that the test or selection procedure is job-related and consistent with business necessity (i.e. validation). Even if the test or selection procedure is valid, the employer may still violate Title VII if there is a less discriminatory alternative available.

Similarly, if a test or selection procedure screens out or tends to screen out individuals with disabilities, an employer may violate the ADA unless the test or selection procedure is shown to be job-related and consistent with business necessity. An employer may also violate the ADA unless it selects and administers an individual’s employment tests in the most effective manner to ensure the test results accurately reflect an individual’s skills, aptitude or whatever other factor the test purports to measure, rather than reflecting an applicant’s or employee’s impairment. Additionally, an employer may violate the ADA if it fails to make reasonable accommodations, including in the administration of a test, to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such accommodation would impose an undue hardship.

If a test or selection procedure has a disparate impact on individuals over the age of 40, an employer may violate the ADEA unless the challenged test or selection procedure is based on a reasonable factor other than age.

The EEOC’s “Best Practices”

In its December 3, 2007 fact sheet, the EEOC set forth the following “Employer Best Practices for Testing and Selection”:

• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. Each 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 responsible for ensuring that its tests are valid under the Uniform Guidelines on Employee Selection Procedures (1978) found at 29 CFR Part 1607.
• 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 while not disproportionately excluding the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should update test specifications or selection procedures to match any changes in job requirements.
• 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 the manner in which it should be administered and scored.
• Employers must administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age or disability.

Conclusion

The EEOC recognizes that employment tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, employers who take a nonchalant approach to employment tests and selection procedures may run afoul of federal EEO laws. Ultimately, each employer is responsible for updating job requirements, ensuring that its employment tests and selection procedures are valid, and considering suitable alternatives which may lessen any disparate impact on protected classes.

For more information, email Louis Santiago at louis.santiago@hklaw.com or call toll free, 1.888.688.8500.