Small to midsized businesses are often caught in the conundrum of “to-do or not-to-do” when it comes to including testing as part of the employment process. Cognitive, physical, personality, aptitude, and language proficiency testing are often used by employers in hiring, promotion or other employment decisions. But these tests can be expensive and must be qualified to avoid discrimination.
Employment testing has been on the rise since 9/11, as security concerns as well as concerns about workplace violence, employee safety and corporate liability have increased. Another motivating factor for testing is the move to an on-line job application process. Employers are using testing to screen large numbers of applicants while reducing questions about subjectivity in decision making. Employers are continually trying to do more with less, resulting in the development of hiring and promotion practices designed to find the best and the brightest.
Legislation such as Title VII of the Civil Rights Act of 1964, The American with Disabilities Act (ADA) of 1990 (and the recent amended ADAA), and the Age Discrimination Act of 1967 prohibit the use of discriminatory employment tests and selection procedures. At issue is disparate treatment and disparate impact. Disparate treatment is intentionally discriminating against someone based on race, color, religion, gender, or national origin. The effect of excluding people based on these criteria is referred to as disparate impact. The Equal Employment Opportunity Commission (EEOC) cites the following examples to help clarify understanding of these issues:
- If an employer requires that all applicants pass a physical agility test, does the test disproportionately screen out women? Employers are required to perform, record, and maintain statistical analyses on test results to determine if a test or selection process has a disparate impact on a protected group.
- If there is a disparate impact, can the employer show that the selection procedure is job-related and consistent with business necessity? For example a clothing manufacturer could prove that it is necessary to have a female model for women’s bathing suit advertisements.
Employers’ best practices for testing and selection include:
- Administer tests and procedures without regard to race, color, national origin, gender, religion, age or disability.
- Ensure that tests are properly validated for the positions or purpose being used by the employer. The test must be job-related and specific to the employer’s use.
- Perform statistical analysis on test results regularly and if there is a disparate impact, determine if there is an equally effective alternative solution and implement it.
- Educate management on testing tools, their use, and expected compliance with EEOC guidelines. Avoid qualification of the testing or results by persons unfamiliar with the procedures and importance of qualified results.
Keep cognizant of changes in these rules and procedures. In a recent Chicago case, Lewis v. City of Chicago (U.S. 5-10, the employer was found to be in violation of Title VII from testing information in employees files dated 1995. The issue revolved around timely filing of a suit. Testing was performed in 1995, the scores were used in 1996 to make employment decisions, and the “qualified” folks who weren’t hired sued in 1997. The rules require that a charge be made to the EEOC within 300 days of the LATEST discriminatory act. The City of Chicago claimed that they acted in 1995 when they assigned classifications to those tested. The plaintiffs claimed the act occurred in 1996 when the employment decisions were actually made. The court agreed with the plaintiffs. Translated, this means that test scores sitting in an applicant or employee file can form the basis for a ‘new’ discrimination complaint when used as a basis for an employment decision including hiring or promoting.
If testing is being used, regularly review your tools, to determine if they may put you at risk for a separate impact claim, before you use the results in making employment decisions.
For more information, visit these sources:
http://www.siop.org/workplace/employment%20testing/employment_testing_toc.aspx