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Employment Tests and Selection Procedures
Employers often use tests and other selection procedures to
screen applicants for hire and employees for promotion.
There are many different types of tests and selection
procedures, including cognitive tests, personality tests,
medical
examinations, credit checks, and criminal background checks.
The use of tests and other selection procedures can be a
very effective means of determining which applicants or
employees are most qualified for a particular
job. However, use of these tools can violate the federal
anti-discrimination laws if an employer intentionally uses
them to discriminate based on race, color, sex, national
origin, religion, disability, or age (40 or older). Use of
tests and other selection procedures can also violate the
federal anti-discrimination laws if they disproportionately
exclude people in a particular group by race, sex, or
another covered basis, unless the employer can
justify the test or procedure under the law.
On May 16, 2007, the EEOC held a public meeting on
Employment Testing and Screening. Witnesses addressed legal
issues related to the use of employment tests and other
selection procedures. (To see the testimony of these
witnesses, please see the
EEOC’s website.
This fact sheet provides technical assistance on some common
issues relating to
the federal anti-discrimination laws and the use of tests
and other selection
procedures in the employment process.
Background
Title VII of the Civil Rights Act of 1964 (Title VII), the
Americans with
Disabilities Act of 1990 (ADA), and the Age Discrimination
in Employment Act
of 1967 (ADEA) prohibit the use of discriminatory employment
tests and
selection procedures.
There has been an increase in employment testing due in part
to post 9-11
security concerns as well as concerns about workplace
violence, safety, and
liability. In addition, the large-scale adoption of online
job applications
has motivated employers to seek efficient ways to screen
large numbers of
online applicants in a non-subjective way.
The number of discrimination charges raising issues of
employment testing, and
exclusions based on criminal background checks, credit
reports, and other
selection procedures, has been increasing since FY 2003,
although the absolute
number of such charges is still small. In FY 2003 there were
26 such charges,
and in FY 2006 the number had risen to 141. Types of Employment Tests and Selection Procedures
Many employers use employment tests and other selection
procedures in making
employment decisions. Examples of these tools, many of which
can be administered
online, include the following:
- Cognitive tests assess reasoning, memory, perceptual speed
and accuracy, and
skills in arithmetic and reading comprehension, as well as
knowledge of a particular function or job
- Physical ability tests measure the physical ability to
perform a particular
task or the strength of specific muscle groups, as well as
strength and stamina in general
- Sample job tasks (e.g., performance tests, simulations, work
samples, and realistic job previews) assess performance and
aptitude on particular tasks
- Medical inquiries and physical examinations, including
psychological tests, assess physical or mental health
- Personality tests and integrity tests assess the degree to
which a person has
certain traits or dispositions (e.g., dependability,
cooperativeness, safety)
or aim to predict the likelihood that a person will engage
in certain conduct (e.g., theft, absenteeism)
- Criminal background checks provide information on arrest and
conviction history
- Credit checks provide information on credit and
financial history
- Performance appraisals reflect a supervisor’s assessment of
an individual’s
performance; and
- English proficiency tests determine English fluency.
Governing EEO Laws
Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination based on race,
color, religion, sex, or national origin.
With respect to tests in particular, Title VII permits
employment tests as long as they are not “designed, intended or used to
discriminate because of race, color, religion, sex or national origin.” 42 U.S.C. §
703(h). Title VII also imposes restrictions on how to score tests.
Employers are not permitted to (1) adjust the scores of, (2) use different
cutoff scores for, or (3) otherwise alter the results of employment-related
tests on the basis of race, color, religion, sex, or national origin. Id. at §
703(l). Title VII prohibits both “disparate treatment” and
“disparate impact”
discrimination. Title VII prohibits intentional discrimination based on
race, color, religion, sex, or national origin. For example, Title VII
forbids a covered employer from testing the reading ability of African
American applicants or employees but not testing the reading ability
of their white counterparts. This is called “disparate treatment”
discrimination.
Disparate treatment cases typically involve the following
issues:
- Were people of a different race, color, religion, sex, or
national origin treated differently?
- Is there any evidence of bias, such as discriminatory
statements?
- What is the employer’s reason for the difference in
treatment?
- Does the evidence show that the employer’s reason for the
difference in treatment is untrue, and that the real reason for the
different treatment is race, color, religion, sex, or national origin?
Title VII also prohibits employers from using neutral tests
or selection procedures that have the effect of disproportionately
excluding persons based on race, color, religion, sex, or national origin,
where the tests
or selection procedures are not “job-related and consistent
with business necessity.” This is called “disparate impact”
discrimination.
Disparate impact cases typically involve the following
issues:
- Does the employer use a particular employment practice that
has a disparate impact on the basis of race, color, religion, sex,
or national origin? For example, if an employer requires that all
applicants pass a
physical agility test, does the test disproportionately
screen out women?
- Determining whether a test or other selection procedure has
a disparate impact on a particular group ordinarily requires a
statistical analysis.If the selection procedure has a disparate impact based on
race, color,
religion, sex, or national origin, can the employer show
that the selection procedure is job-related and consistent with
business necessity?
- An employer can meet this standard by showing that it is
necessary to the safe and efficient performance of the job. The challenged
policy or practice should therefore be associated with the skills
needed to perform
the job successfully. In contrast to a general measurement
of applicants’ or employees’ skills, the challenged policy or practice must
evaluate an individual’s skills as related to the particular job in
question.
- If the employer shows that the selection procedure is
job-related and consistent with business necessity, can the person
challenging the selection procedure demonstrate that there is a less
discriminatory
alternative available? For example, is another test
available that would be equally effective in predicting job performance but would
not disproportionately exclude the protected group?
See 42 U.S.C. § 703 (k). This method of analysis is
consistent with the seminal Supreme Court decision about disparate impact
discrimination, Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In 1978, the EEOC adopted the Uniform Guidelines on Employee
Selection Procedures or “UGESP” under Title VII. See 29 C.F.R. Part
1607.1 UGESP provided uniform guidance for employers about how to
determine if their
tests and selection procedures were lawful for purposes of
Title VII disparate impact theory. UGESP outlines three different ways employers can show that
their employment tests and other selection criteria are
job-related and
consistent with business necessity. These methods of
demonstrating job-relatedness are called “test validation.” UGESP provides
detailed guidance about each method of test validation.
- Title I of the Americans with Disabilities Act (ADA)
Title I of the ADA prohibits private employers and state and
local governments from discriminating against qualified
individuals with disabilities on the basis of their disabilities.
- The ADA specifies when an employer may require an applicant
or employee to undergo a medical examination, i.e., a procedure or test
that seeks information about an individual’s physical or mental
impairments or health.
- The ADA also specifies when an employer may make
“disability-related inquiries,” i.e., inquiries that are likely to elicit
information about a disability.
- When hiring, an employer may not ask questions about
disability or require medical examinations until after it makes a conditional job
offer to the applicant. 42 U.S.C. §12112 (d)(2);
- After making a job offer (but before the person starts
working), an employer may ask disability-related questions and conduct
medical examinations as long as it does so for all individuals
entering the same
job category. Id. at § 12112(d)(3); and
- With respect to employees, an employer may ask questions
about disability or require medical examinations only if doing so is
job-related and consistent with business necessity. Thus, for example, an
employer could
request medical information when it has a reasonable belief,
based on objective evidence, that a particular employee will be
unable to perform essential job functions or will pose a direct threat because
of a medical
condition, or when an employer receives a request for a
reasonable accommodation and the person’s disability and/or need for
accommodation is not obvious. Id. at § 12112(d)(4).
The ADA also makes it unlawful to:
- Use employment tests that screen out or tend to screen out
an individual with a disability or a class of individuals with
disabilities unless the test, as used by the employer, is shown to be job-related
and consistent
with business necessity. 42 U.S.C. §
12112(b)(6)
- Fail to select and administer employment tests in the most
effective manner to ensure that test results accurately reflect the
skills, aptitude or whatever other factor that such test purports to measure,
rather than
reflecting an applicant’s or employee’s
impairment. Id. at § 12112(b)(7)
- Fail to make reasonable accommodations, including in the
administration of tests, to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant
or employee,
unless such accommodation would impose an undue hardship.
Id. at § 12112(b)(5)
The Age Discrimination in Employment Act (ADEA)
The ADEA prohibits discrimination based on age (40 and over)
with respect to any term, condition, or privilege of employment. Under the
ADEA, covered employers may not select individuals for hiring, promotion,
or reductions in
force in a way that unlawfully discriminates on the basis of
age. The ADEA prohibits disparate treatment discrimination, i.e.,
intentional discrimination based on age. For example, the ADEA forbids
an employer from
giving a physical agility test only to applicants over age
50, based on a belief that they are less physically able to perform a
particular job, but not testing younger applicants.
The ADEA also prohibits employers from using neutral tests
or selection procedures that have a discriminatory impact on persons
based on age (40 or older), unless the challenged employment action is based on
a reasonable
factor other than age. Smith v. City of Jackson, 544 U.S.
228 (2005). Thus, if a test or other selection procedure has a disparate
impact based on age, the employer must show that the test or device chosen was a
reasonable one.
Recent EEOC Litigation and Settlements. A number of recent EEOC enforcement actions illustrating
basic EEO principles focus on testing.
Title VII and Cognitive Tests: Less Discriminatory
Alternative for Cognitive Test with Disparate Impact.
EEOC v. Ford Motor Co. and
United Automobile
Workers of America, involved a court-approved settlement
agreement on behalf of a nationwide class of African Americans who were rejected
for an apprenticeship program after taking a cognitive test known
as the
Apprenticeship Training Selection System (ATSS). The ATSS
was a written cognitive test that measured verbal, numerical, and spatial
reasoning in order to evaluate mechanical aptitude. Although it had been
validated in 1991, the
ATSS continued to have a statistically significant disparate
impact by excluding African American applicants. Less discriminatory
selection procedures were subsequently developed that would have
served Ford’s needs,
but Ford did not modify its procedures. In the settlement
agreement, Ford agreed to replace the ATSS with a selection procedure, to be
designed by a jointly-selected industrial psychologist, that would predict
job success and
reduce adverse impact. Additionally, Ford paid $8.55 million
in monetary relief.
Title VII and Physical Strength Tests: Strength Test Must Be
Job-Related and Consistent with Business Necessity If It Disproportionately
Excludes Women.
In EEOC v. Dial Corp., women were disproportionately rejected
for entry-level production jobs because of a strength test. The test had a
significant adverse impact on women – prior to the use of the test, 46% of hires
were women; after use of the test, only 15% of hires were women. Dial defended
the test by noting that it looked like the job and use of the test had
resulted in fewer injuries to hired workers. The EEOC established through
expert testimony, however, that the test was considerably more difficult than
the job and that the reduction in injuries occurred two years before the test
was implemented, most likely due to improved training and better job rotation
procedures. On appeal, the Eighth Circuit upheld the trial court’s finding
that Dial’s use of the test violated Title VII under the disparate impact
theory of discrimination. See http://www.eeoc.gov/press/11-20-06.html
ADA and Test Accommodation: Employer Must Provide Reasonable
Accommodation on Pre-employment Test for Hourly, Unskilled Manufacturing
Jobs.
The EEOC settled EEOC v. Daimler Chrysler Corp., a case brought on behalf of
applicants with learning disabilities who needed reading accommodations
during a pre-employment test given for hourly unskilled manufacturing
jobs. The resulting settlement agreement provided monetary relief for
12 identified individuals and the opportunity to take the hiring test with
the assistance of a reader. The settlement agreement also required that the
employer provide a reasonable accommodation on this particular test to each
applicant who requested a reader and provided documentation establishing
an ADA disability.
The accommodation consisted of either a reader for all
instructions and all written parts of the test, or an audiotape providing the
same information. Employer Best Practices for Testing and Selection:
- 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 further background on experiences and challenges
encountered by employers, employees, and job seekers in testing, see the testimony
from the Commission’s meeting on testing, located on the EEOC’s public web site
at:
http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html.
For general information on discrimination Title VII, the ADA
and the ADEA see EEOC’s web site at:
http://www.eeoc.gov/abouteeo/overview_practices.html
and
http://www.eeoc.gov/abouteeo/overview_laws.html
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