The EEOC yesterday published a fact sheet offering some guidance for employers on the use of employment tests and selection procedures, and how they are treated under the anti-discrimination laws. Some examples of such tests and selection procedures are cognitive tests, physical ability tests, sample job tasks, personality tests, medical exams, psychological tests, English proficiency tests, credit checks, and criminal background checks. The latter two are also covered by the Fair Credit Reporting Act, which requires specific written consent by the employee, along with other specific notice and disclosure requirements (check with your counsel). The EEOC recommends that Title VII, the ADA, and the ADEA be taken into consideration in the application of any of these tests or selection procedures. For example (and not to state the obvious), do not give whites one test and blacks another, or give an agility test only to employees over the age of 40 (I'm not making this up).
The area where the discrimination laws are usually implicated is when a neutrally applied test disparately impacts one group over another. For example, does a physical exam that is given to all job applicants disproportionately screen out female applicants? If it does, is it otherwise job-related and supported by business necessity? Typically, if a neutrally given test evaluates one's skills as a related to the particular job in question it will usually past muster.
The ADA has specific statutory provisions and regulations that apply to medical inquiries and testing:
- When hiring, an employer may not ask any questions about disabilities or require medical exams until after it makes a conditional job offer to the applicant.
- After making a job offer, but before the individual starts working, an employer may ask disability-related questions and require medical exams as long as it does so for all individuals entering the same job category.
- With respect to current employees, an employer may ask questions about disabilities or require medical exams only if doing so is job-related and consistent with business necessity. Examples of permissible inquiries of testing of current employees would be if the employer has a reasonable, objective belief that an employee cannot perform the job's essential functions or will pose a direct threat because of a medical condition, or if an employee requests a reasonable accommodation.
- Reasonable accommodations must be made in any employment testing or screening to enable a qualified individual with a disability to take the test, unless such accommodation poses an undue hardship.
- All employee medical information must be kept confidential, maintained securely and separately from personnel files, and only disclosed to supervisory personnel on a need to know basis.
The EEOC also gives some employer best practices for testing and selection. Many of these are common sense, but for the sake of completeness, I am going to list them all anyway:
- 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 the EEOC's Uniform Guidelines on Employee Selection Procedures.
- 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 more information, the EEOC's Fact Sheet on Employment Tests and Selection Procedures is available here.