However, when employment tests are not designed, administered or used correctly, they can leave employers vulnerable to claims of discrimination and reverse discrimination.
Under the current administration, the US Equal Employment Opportunity Commission (EEOC) has been keeping a close watch on employer’s use of employment tests. Several years ago, the US Supreme Court decided a high-profile employment test case and held, in Ricci v. DeStefano, that the City of New Haven, Conn., committed reverse discrimination when it administered an employment test for promotions of the city’s firefighters.
Fortunately, when employers understand what is involved and plan carefully, they can still use employment testing to find the best applicants while minimizing the risks that one particular group can later claim that they were discriminated against
To help provide some clarity, the EEOC has issued a fact sheet regarding employment test and selection procedures.
Employers utilizing employment tests should be familiar with the EEOC’s guidance, but realize that these guidelines are fairly vague. Employers should review their testing policies as soon as possible and be prepared to invest some time in the process.
Review current procedures – There are many factors to consider when examining the legality of employment screening tests. Along with federal legislation and court rulings, employers need to consider state and local anti-discrimination laws. Employers wanting to minimize the risks of lawsuits should commit to carefully reviewing the tests they give, what positions they are used for and how they are administered.
Educate HR personnel – As the EEOC points out in its fact sheet, the people who administer the tests, typically HR personnel, need to understand the goals of the tests and how they are intended to work.
Review outcomes from tests – Blatant discrimination is hard to hide, but it’s not always easy to see when a group or class may have a disadvantage with a particular test. Whenever possible, employers should use quantitative information, instead of subjective answers. The data should be compiled and regularly reviewed by someone who has the expertise to crunch the numbers and see if hiring patterns have been impacted because of test results. If a particular test screens out a group that is protected under federal law, the employer needs to determine if there is another alternative that is equally effective. If one exists, the employer needs to use that one instead.
Don’t rely on the testing company to do the work – It’s not enough to work with an expensive vendor that can create an elaborate testing system for your company; the EEOC expects employers to take responsibility for the testing procedures that they use.
Document everything – With all hiring decisions, employers should always put everything in writing. Test results should be tracked, and hiring managers need to justify why they hired certain employees while rejecting others.
Review tests frequently – Employers that use employment tests need to understand that they are fluid and should be reviewed regularly. This will help ensure that the tests continue to be relevant for specific job positions.
Considering the potential liabilities and uncertainties, especially with the EEOC focusing on employment tests, some employers may be wondering if it is worthwhile to use employment testing. There are many advantages that well-designed, validated, thoughtful and relevant tests bring to the hiring process. For those who understand the potential risks, employment tests can help by identifying the best people for the job, reducing costs and training time and minimizing job turnover while keeping companies safe from discrimination lawsuits.