EEOC takes aim on pre-employment testing
October 16, 2008 by Sam NarisiPosted in: Assessing the right candidate, Job screening tests, Special Report
For many jobs, a pre-employment test of physical or cognitive skills can help the company hire only the best applicants. But when companies aren’t careful, those tests can lead to big legal trouble.
The biggest challenge for employers is avoiding claims that a hiring procedure has a “disparate impact” on a certain group. Even a test that doesn’t directly discriminate can get the company in trouble if it rejects a disproportionate number of members in a protected class.
Last year, FedEx had to pay a $55 million settlement after using tests that had a disparate impact on minority applicants.
How can companies stay safe? Tests are fine as long as companies can prove they’re “job related and consistent with business necessity” and no non-discriminatory alternative is available, according to the EEOC.
HR can also take these steps to avoid legal mistakes in pre-employment testing:
- Keep the tests up-to-date — Technology is changing the way many jobs are done, and some skills are no longer necessary. The tests must be changed as the jobs do.
- Don’t always use the same tests for different jobs — Jobs may be similar but not exactly the same. If the necessary skill sets are different, different tests should be used.
- Beware of education requirements — Many companies require a high school diploma for a lot of positions. But lawyers warn against the practice, saying it might be hard to prove a diploma’s necessary for some menial jobs.
- Track statistics — To avoid a disparate impact, companies can keep track of the effect a test has on different applicant groups. Also, some companies hire consultants to have selection procedures professionally validated.
- Don’t put blind faith in a purchased test — When buying pre-made tests, it’s important to get documentation that the test has been validated. But, the EEOC says, companies are still on the hook for making sure those tests don’t create a disparate impact when they’re used.
October 20th, 2008 at 2:17 pm
Hi:
Your readers should be aware of the following misinformation contained in this article.
First, the ultimate and consolidated complaint against Federal Express arose out of two complaints filed in 2002 and 2003 against Federal Express. These complaints alleged that Federal Express discriminated against certain protected groups with respect to job assignment, compensation, promotion and other terms of employment by maintaining a system for making decisions about promotions, assignments, transfers, discipline and compensation which was excessively subjective and discriminatory. The basic skills test that Federal Express was using did not stimulate this litigation and was not included as a part of these initial complaints–rather the perceived subjective and unfair nature of Federal Express’ general employment practices caused plaintiffs to file this litigation. As an aside, the overwhelming focus of the settlement was on these subjective practices. As for the basic skills test, it was ultimately included in an amended complaint and Federal Express agreed to eliminate its use for only three lower level positions (e.g., Courier, Ramp Transport Driver and Service Agent).
Additionally, the article implies that tests cannot be used if they have a disparate impact. To the contrary, the use of human resources tools that have a disparate impact can be justified if the employer can show that the tool is job-related and consistent with business necessity. If that were not the case, employers couldn’t use criminal background checks, credit checks, eduational requirements, experience requirements, drug test, etc.
I trust this adequately corrects some of the misinformation contained in this article.
David Arnold, Ph.D., J.D.