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John T. Neighbours, Editor; Carrie D. Storer, Kevin S. Smith, Craig M. Borowski, Stuart R. Buttrick, and Eric C. Papier, Assistant Editors
Baker & Daniels
Vol. 18, No. 4
April 2008
EMPLOYMENT TESTING
Discriminatory employment tests score an 'F' with the EEOC
Susan W. Kline
Recent enforcement activities of the Equal Employment Opportunity Commission (EEOC) make it clear that the agency continues to watch closely for employment tests and other selection procedures that are discriminatory or have the effect of screening
out individuals based on protected status. The commission recently issued a list of "best practices" to follow when using employment tests and selection procedures. You would be wise to review the types of screening mechanisms that can come under
scrutiny, determine which ones you currently use or are considering using, and evaluate the measures that need to be taken to ensure that none of your hiring practices run afoul of the law.
What counts as an employment test or selection procedure?
The latest EEOC guidance focuses on a variety of protocols you may use in screening job applicants. Most of them are designed to introduce greater objectivity in the selection process, better measure which applicants are best qualified, and reduce
your liability for negligent hiring. The agency suggests the following mechanisms for applicant screening:
- Cognitive tests. These testsmeasure reasoning, memory, perceptual speed and accuracy, math skills, reading comprehension, and in some cases, knowledge of a particular function or job.
- Physical ability tests. Employers use these tests
to measure an applicant's physical ability to perform a particular task or the strength of a specific muscle group as well as strength and stamina in general. An example of such a test might include asking an applicant to lift 30 pounds to shoulder
level at least four times in one minute.
- Sample job tasks. Examples of sample job tasks include performance tests, simulations, work samples, and job "previews" that require the applicant to perform a specific task as if he was actually on the
job. These "tests" assess performance and aptitude on particular tasks that will be part of the job.
- Medical inquiries and physical examinations, including psychological tests. These tests are used to determine an applicant's physical or mental
health.
- Personality tests and integrity tests. These tests assess the degree to which a person has certain traits or dispositions such as dependability, concern for safety, or willingness to cooperate when working in a team setting. They may
also attempt to predict the likelihood that a person will engage in certain conduct, such as theft or absenteeism.
- Criminal background checks. Background checks provide information on arrest and conviction history.
- Credit checks. An
applicant's credit and financial history are revealed through credit checks.
- English proficiency tests. These tests are designed to determine fluency of the English language.
The guidance also mentions performance appraisals, but the
agency is unclear about how it views them for use as a selection procedure.
Legal landscape
A number of federal laws come into play when determining which employment tests and selection procedures are allowed.
Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. It also prohibits you from adjusting scores, using different cutoff scores, or otherwise altering the
results of employment-related tests on the basis of protected status. Under the Act, there are two ways a testing instrument can come under challenge. A test can be challenged if it intentionally discriminates against a protected group. For example,
if you administered a reading test only to applicants who appear to be of Middle Eastern descent, you would be subject to a claim of intentional (or disparate treatment) discrimination.
Title VII also prohibits you from using tests that appear to be neutral but have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin when the test or selection procedure isn't job-related and
consistent with business necessity. That kind of exclusion is known as disparate impact discrimination.
For example, you might require all candidates for an entry-level position to take a test designed to measure reading comprehension and use a cutoff score representing an eighth-grade reading level. If that requirement screened out protected-status
candidates, such as racial minorities, at a significantly higher level than other candidates, it would run afoul of Title VII unless you could show that the requirement was job-related and consistent with business necessity. If you couldn't show that
eighth-grade reading comprehension was required for the job, you would have difficulty defending your screening procedure.
If your selection mechanism is challenged as having a disparate impact, and you can show that the procedure is job-related and consistent with business necessity, a challenger can still prevail by pointing to a less discriminatory alternative testing
procedure. For example, another type of test might be available that would predict job performance equally as well without disproportionately excluding individuals in a protected group.
Age Discrimination in Employment Act (ADEA). The ADEA provides similar protections as Title VII to individuals who are age 40 or older.
Americans with Disabilities Act (ADA). The ADA makes it unlawful to use an employment test that screens out or tends to screen out individuals with disabilities unless the test is job-related and consistent with business necessity. Tests must
accurately reflect the skills, aptitudes, or other characteristics necessary to successfully perform the job rather than simply reflecting an applicant or employee's impairment.
The ADA protects applicants as well as employees. The Act makes it illegal for an employer, in the administration of its testing, not to make a reasonable accommodation for any known physical or mental limitations of an otherwise qualified individual
with a disability, unless such an accommodation would impose an undue hardship. Accordingly, applicants with disabilities may be entitled to accommodations such as additional time to complete a test or a large-print version of a written test.
The ADA also governs when you may require an applicant or employee to undergo a medical examination to gain information about his physical or mental health impairments. You may not make inquiries about disabilities that aren't obvious, or require
medical examinations, until after extending a conditional job offer. The medical exam should be conducted before the employee starts work and only if you require an exam for all individuals entering the same job category. If a postoffer exam reveals
a disability that affects the applicant's ability to perform a job function, you have an obligation to try to accommodate the individual to enable him to perform the essential functions of the job.
Once an employee has started work, you may ask about a disability or require a medical exam only when it is job-related and consistent with business necessity. That would generally require a reasonable belief (based on objective evidence) that an
employee won't be able to perform an essential job function for a medical reason or will pose a direct threat to himself or others because of a medical condition. Medical verification may be required if the employee makes a request for a reasonable
accommodation and the disability and/or need for accommodation is not obvious.
Recent EEOC enforcement actions. Recent actions by the EEOC demonstrate its active role in policing against test and selection procedures that tend to screen out individuals based on protected status. Not long ago, the agency challenged a Ford Motor
Company and United Auto Workers apprenticeship program that used a cognitive test measuring verbal, numerical, and spatial reasoning to evaluate mechanical aptitude.
The test was validated in 1991 as predictive of success in the apprenticeship role, but it tended to exclude African-American applicants at a significantly higher rate than applicants of other races. After 1991, less discriminatory selection
procedures were developed that would have served the same purpose in predicting program success, but Ford continued to use the same testing approach. When the EEOC challenged the practice, Ford ultimately paid $8.55 million in monetary relief and
agreed to replace its selection procedure with another procedure that would predict job success with fewer adverse effects on African-American candidates.
The EEOC also challenged a screening process used by Dial Corporation that measured physical strength. The test tended to screen out women from entry-level production jobs at a significant rate. Before Dial implemented the test, 46 percent of
individuals hired into such jobs were women. After the test, only 15 percent of hires were women. Dial defended its test by arguing that it was comparable to the job's tasks and had resulted in fewer injuries to the workers it hired. The EEOC
countered with expert testimony that the strength test was considerably more difficult than the actual job and that the reduction in injuries had actually occurred two years before the test was implemented, possibly because of improved training and
better job rotation procedures.
Daimler-Chrysler Corporation met a similar fate with the EEOC. The auto company denied reading accommodations to applicants with learning disabilities taking preemployment tests for hourly, unskilled manufacturing jobs. In response to the challenge,
Daimler-Chrysler provided monetary relief to 12 individuals along with the opportunity to take the test with either the assistance of a reader for all instructions and all written parts of the test or an audiotape providing the same information.
EEOC-recommended best practices
The EEOC has identified best practices for employment testing and selection. Its list includes the following:
- Administer tests and selection procedures without regard to protected status (race, color, religion, national origin, sex, age (40 or older), and disability).
- Ensure that your employment tests and selection procedures are properly
validated for the position and purpose for which they are used (i.e., they have been professionally verified as accurately predictive of the traits they are supposed to measure). The test or selection procedure must be job-related and its results
appropriate for your company's purpose.
- If the selection procedure screens out a protected group, you should determine whether there is an equally effective alternative selection procedure with less adverse impact. For example, if the selection
procedure is a test, ask yourself whether another test would predict job performance as well or better without disproportionately excluding a protected group.
- To ensure that any test or selection procedure remains predictive of job success, you
should keep track of any changes in job requirements and technologies and update test specification or selection procedures appropriately.
- Make sure that managers who are involved with administering or using your test or selection procedures
have sufficient understanding of the procedures.
Take-away points
Testing and screening procedures can be extremely helpful to employers. They add greater objectivity to the selection process and improve predictions of success on the job. However, they must be used with caution and kept up-to-date to avoid legal
challenge. Consult with counsel when implementing any such procedure, and consider having a periodic audit of all testing and selection procedures to ensure that (1) HR management is aware of all screening procedures being used and (2) any procedures
planned or in use have been properly vetted under all the relevant legal standards.
Copyright 2008 M. Lee Smith Publishers LLC
INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the
employment law attorney of your choice.
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