Employers Should Evaluate Testing Procedures to Eliminate Bias

Employers often use test and other selection procedures to screen applicants when hiring and evaluating employees for promotion. In fact, there has been an increase in employment testing due in part to post 9/11 security concerns and issues related to workplace violence, safety and liability, according to the U.S. Equal Employment Opportunity Commission (EEOC). Furthermore, the increasing use of online job applications has motivated employers to seek efficient ways to screen big applicant pools in a non-subjective way, the Commission added.

With that in mind, the EEOC has issued a fact sheet on the application of federal anti-discrimination laws to employer tests and other selection procedures to screen applicants for hire and employees for promotion. The fact sheet describes common types of employer administered tests and selection procedures used in the workplace. The document also suggests best practices for employers to follow when using employment tests and other screening devices, to avoid EEOC enforcement actions.

Types of Tests

Employee testing and other selection procedures can be an effective way to determine which applicants or employees are most qualified for a job. Tools can be administered online, which can be useful when screening online applicants or someone who lives in another location than the jobsite.

Among the tools the EEOC says are available to employers are:

• Cognitive tests that 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 that 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) that assess performance and aptitude on particular tasks;
• Medical inquiries and physical examinations, including psychological tests, that assess physical or mental health;
• Personality tests and integrity tests that 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, which provide information on arrest and conviction history;
• Credit checks, which provide information on credit and financial history;
• Performance appraisals, which reflect a supervisor’s assessment of an individual’s performance; and
• English proficiency tests to determine English fluency.

Helpful or Discriminatory?

While those tools can be useful, the EEOC cautions that “the tests can violate 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 also can 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.”

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 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 2003. While the number of charges is relatively small, in that year, there were 26 such charges,. In fiscal year 2006, the number had risen to 141, EEOC data indicates.

One way the EEOC says an employer can determine if he or she is potentially violating the law is by asking him or herself:

• 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?

A number of recent EEOC enforcement actions illustrate the need for companies to examine their testing practices.

In EEOC v. Ford Motor Co. and United Automobile Workers of America, the EEOC evaluated the disparate impact of a cognitive test. The case 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 to evaluate mechanical aptitude, EEOC says. Although the test had been validated in 1991, the Commission determined it had a statistically significant disparate impact by excluding African American applicants. Less discriminatory selection procedures would have served Ford’s evaluation needs, but Ford did not modify its procedures.

As a result, Ford settled the case and 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.

In EEOC v. Dial Corp., the EEOC found women were disproportionately rejected for entry-level production jobs because of a strength test. The Commission found the test had a significant adverse impact on women. Prior to the use of the test, 46 percent of hires were women; after use of the test, only 15 percent of hires were women.

EEOC says 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. Through expert testimony, however, the EEOC determined that the test was 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 www.eeoc.gov/press/11-20-06.html).

Recently, 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, EEOC says.

“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,” said Commission Chair Naomi C. Earp. She recommended that employers refer to the EEOC’s recently released fact sheet to help voluntarily comply with EEOC-enforced statutes, as companies seek lawful and efficient ways to screen large numbers of applicants.

Best Practices

Additionally, to avoid enforcement actions, EEOC recommends: