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02/05/2008


By:  Jennifer L. Craighead
Related Practice Areas: Employment Law,

On December 4, 2007, the Equal Employment Opportunity Commission (EEOC) issued a fact sheet on the application of employment discrimination laws regarding employment testing given to applicants for hire and employees for promotion. The fact sheet addresses common pre-employment screening tools such as cognitive tests, personality tests, medical examinations, criminal background checks, and credit checks. The fact sheet also identifies “best practices.” A brief summary of the fact sheet follows:

Title VII Disparate Impact Analysis
The fact sheet addresses the governing Equal Employment Opportunity laws in the area of selection procedures. Notably, the fact sheet addresses the issue of neutral selection procedures and disparate impact under Title VII of the Civil Rights Act of 1964. Disparate impact occurs under Title VII when a neutral selection procedure disproportionately excludes persons based on race, color, religion, sex, or national origin. 

In the typical scenario, the EEOC will first determine whether a disparate impact exists. For example, if an employer uses a physical agility test to screen applicants, does the test disproportionately screen out women? Ordinarily this determination requires statistical analysis. If the test produces a disparate impact based on gender, the employer must show that the test is “job-related and consistent with business necessity.” An employer can meet this standard in the example if it can prove that the test is necessary to the safe and efficient performance of the job; thus, the test must be associated with the skills needed to perform the job successfully. If the employer can demonstrate the validity of the test in this regard, the person challenging the procedure must show a less discriminatory alternative exists; that is, another test is available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group.

Notable Cases and Settlements
The fact sheet also addresses a few of the recent EEOC enforcement actions in the area of selection procedures. Among the actions referenced is a case dealing with cognitive testing which serves as a warning to employers of their duty to periodically evaluate the impact and effectiveness of their pre-employment selection procedures. 

In EEOC v. Ford Motor Co. and United Automobile Workers of America, the EEOC brought a nationwide class action lawsuit on behalf of African Americans who were rejected for an apprenticeship program after taking a cognitive test known as the Apprenticeship Training Selection System (ATSS). The test measured verbal, numerical, and spatial reasoning in order to evaluate mechanical aptitude. Although the test had been validated in 1991, the ATSS had a statistically significant disparate impact against African Americans. Less discriminatory selection procedures were subsequently developed that would have served the company’s needs, but Ford did not modify its procedures. As part of a settlement, Ford paid $8.55 million in monetary relief and agreed to replace the ATSS selection procedure.

Best Practices
Among the best practices cited by the EEOC for testing and selection are the following: 

• Employers must make sure that any employment test is properly validated for the position for which it is being used. This means that the test must be related to the job and its results must bear a relationship to the person’s ability to perform the job. While a test vendor’s documentation supporting the validity of a test may be helpful, employers are still required to ensure that their tests are valid under the EEOC’s Uniform Guidelines on Employee Selection Procedures which are available on the EEOC’s website. 

• Employers should ensure that tests and selection procedures are not adopted casually by managers. A test should not be implemented without an understanding as to its effectiveness and limitations for the company, its appropriateness for a specific job, and whether it can be administered and scored. 

• Employers should keep abreast of changes in job requirements and should update test specifications accordingly.

A copy of the EEOC’s newly published fact sheet is available at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.
 
Attorneys at Barley Snyder regularly audit and review employers’ pre-employment testing and selection procedures, including reviewing employment applications, written selection procedures, and pre-employment tests. If you would like assistance with your pre-employment and selection process, please contact any member of the Employment Law Group.


Jennifer L. Craighead chairs the firm’s Employment Law Group and counsels employers on personnel matters, conducting sexual harrassment and other investigations for employers, reviewing employment policies and handbooks, labor arbitrations, counseling in OSHA compliance and wage and hour issues under the FLSA, and defending employers in discrimination and other employment-related complaints. She can be reached at (717) 399-1523; jcraighead@barley.com.