An extensive fact sheet on the application of federal antidiscrimination laws to employer tests and other selection procedures to screen applicants for hire and employees for promotion was issued by the US Equal Employment Opportunity Commission (EEOC) on December 3, 2007.
Discriminatory employment tests and selection procedures are prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act -- all of which are enforced by the EEOC.
The new fact sheet describes common types of employer administered tests and selection procedures used in the 21st century workplace, including cognitive tests, personality tests, medical examinations, credit checks and criminal background checks. The document also focuses on "best practices" for employers to follow when using employment tests and other screening devices. Recent EEOC enforcement actions are cited in the fact sheet as well.
Best practices. The following best practices for testing and selection are highlighted in the EEOC's new fact sheet:
l Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
l 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.
l 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.
l 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.
l 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.
Increased testing, charge trend. The EEOC has observed an increase in employment testing due in part to post 9-11 security concerns and issues related to workplace violence, safety and liability. In addition, the large-scale adoption of online job applications has motivated employers to seek efficient ways to screen big applicant pools in a non-subjective way.
Charges of job discrimination filed with the EEOC raising issues of employment testing and exclusions based on criminal background checks, credit reports and other screening tools have trended upward from 26 in Fiscal Year 2003 to 141 in FY 2006. On May 16, 2007, the Commission held a public meeting at agency Headquarters in which expert panelists addressed legal issues related to the use of employment tests and other screening devices.
"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," said EEOC Chair Naomi C. Earp. "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."
The EEOC's new technical assistance document is available on the agency's website at www.eeoc.gov/policy/docs/factemployment_procedures.html