Many employers use tests and other selection devices as part of their hiring process and test employees after they are hired. But are those tests legal under the federal antidiscrimination laws?
On December 3, 2007, the Equal Employment Opportunity Commission ("EEOC") issued a new "Fact Sheet" on tests and selection procedures used to screen applicants and workers. In its press release announcing the Fact Sheet, EEOC Chair Naomi C. Earp noted, "This fact sheet will help employers voluntarily comply with EEOC-enforced statutes, as companies seek lawful and efficient ways to screen large numbers of applicants. . . . Tests and other selection tools can be an effective means of making employment decisions, as long as they are not used to screen out individuals in a discriminatory way."
While the Fact Sheet isn't as detailed as others the EEOC has issued and although it doesn't establish any new law in this area, it does provide a nice summary of the current state of the law and provides an insight for the employer on the EEOC's thinking regarding applicant and employee testing. The Fact Sheet also contains a summary of what the EEOC believes are "Employer Best Practices for Testing and Selection." Some of these "best practices" are obvious, like: "Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, retaliation, age (40 or older), or disability." Others, however, may be somewhat more helpful. For example, the EEOC reminds employers that while the test vendor's documentation supporting the validity of a test "may be helpful," the employer using the test is ultimately responsible for making sure that the test is valid under the Agency's Uniform Guidelines on Employee Selection Procedures. In addition, the EEOC suggests that employers must keep abreast of changes, not only to tests and test procedures, but to the jobs themselves to ensure that the tests they use remain valid predictors of success in the job.
Finally, the EEOC reminds employers that tests and testing procedures should be adopted only by individuals who have an understanding not only of the advantages of a given test but also of its limitations: "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."
You can obtain a copy of the Fact Sheet at http://www.eeoc.gov/policy/docs/factemployment_procedures.html. If you currently use any sort of testing or are contemplating starting to test, the Fact Sheet is worth a read. In addition, if you have any questions about applicant or employee testing, please contact any member of the WN&J Labor and Employment Group.