EEOC Best Practices: How to Test Employees Without Violating Discrimination Laws
Employers in Virginia, the District of Columbia and nationwide need to ensure that testing and selection procedures used to screen job applicants or existing employees for advancement or other opportunities do not have a discriminatory impact on the basis of race, sex, age, disability or other protected category. In recent years, testing and selection criteria have been a prime target of the Equal Employment Opportunity Commission's (EEOC) enforcement efforts. For example, in November 2006, the Eighth Circuit affirmed a $3 million judgment in EEOC v. Dial Corp resulting from a strength test that appeared to have excluded women from entry-level jobs. In 2007, Ford Motor Company, two of its affiliates, and the UAW entered into a $1.6 million settlement stemming from cognitive apprenticeship tests that appeared to have excluded African Americans. That settlement came on the heels of an $8.5 million settlement in a related case.
In the wake of these multi-million dollar judgments and settlements, the EEOC issued a fact sheet to assist employers in understanding how to avoid employment discrimination claims based on tests and other selection criteria.
According to the EEOC's fact sheet , employers should consider the following:
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 UGESP.
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.
For more information, contact:
Lori J. Searcy
Searcy Law Offices, LLC
1800 Diagonal Road, Suite 600
Alexandria, VA 22314
Ph: 703-644-4122
Email: info@searcy-law.com
