EEOC issues guidance on testing and selection procedures

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.

BREAKING NEWS: State halts new maternity leave regulations

So I've been saying for the past few months that once the OCRC adopted its new maternity leave regulations, passage by the legislative Joint Committee on Agency Rule Review would be a mere formality. Boy do I have egg on my face.

In a 9-1 vote, the JCARR sent the new regulations back to the OCRC for a more complete fiscal analysis. The Committee was unhappy that the OCRC said there would be no fiscal impact on school districts or local governments from the rule change. Today's Plain Dealer quotes State Senator and JCARR member Tom Niehaus, who cited as an example a small township police department that would be forced to cover shifts for a pregnant employee and pay overtime costs. Sen. Niehaus also expressed concern as to whether the OCRC has the authority to enact these regulations, although the Committee as a whole sidestepped that issue. The OCRC must now wait at least 90 days before returning with an updated application for the rule change. One now has to question whether the JCARR will ever approve the new regulations.

The bottom line for employers is that for now the old rule remains, that women must given a "reasonable" amount of time off work for maternity leave. I caution, however, that courts that have looked at the current 4112-05-5(G) have interpreted 12 weeks as "reasonable" because it is what the FMLA provides.

How far to the right has the Supreme Court swung?

In reporting on yesterday's oral argument in Sprint/United Management v. Mendelsohn, the New York Times asks the question: "Has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" The answer will not be known until all of this term's employment cases have been decided, but yesterday's oral argument may give us a clue that employees could have a tough go under the Roberts Court.

Many of the Justices seemed very concerned that the admission of "me, too" evidence in discrimination cases would lead to mini-trials of each "me, too" witness. The Justices were also concerned that admission of "me, too" testimony would require correlative admission of "but not us" witnesses in rebuttal by the employer. Trials that could last a mere two days could "last a thousand years," in the words of Justice Breyer, who is not known for his conservative views. The Justices questioned whether it was just simpler and cleaner to exclude the evidence in all but the clearest of cases, such as when the same decisionmaker is involved. After reading the argument transcript, I stand by yesterday's prediction -- the Court will hold that the appellate court erred in reversing the trial court's discretionary exclusion of the "me, too" evidence, and rule that such evidence is neither per se admissible or inadmissible in discrimination cases, but is left to the sound discretion of the trial court under Evidence Rule 403. The Court may also set forth some guideposts for trial courts to follow in exercising its discretion, such as whether the same decisionmaker was involved in the decision to terminate the "me, too" witnesses, or whether there is objective, independent evidence of a policy or practice of discrimination.

Supreme Court to hear arguments today on issue of "me too" discrimination

Sprint/United Management v. Mendelsohn, which will be argued today at the Supreme Court, raises an important evidentiary issue that arises time and again in discrimination cases: "whether a district court must admit 'me, too' evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." Although this is an age discrimination case, the Court's holding will almost certainly affect race, gender, and other discrimination lawsuits. The issue is important for businesses, as permitting "me, too" evidence of discrimination will likely make discrimination cases more time-consuming, expensive, and difficult to defend, by forcing companies to defend against allegations brought by employees not parties to the lawsuit.

The facts of Mendelsohn are relatively simple. Ellen Mendelsohn, 51 years old, was one of 18 people in her group laid off by Sprint in the fall of 2002. Company-wide, Sprint laid off 15,000 employees. Sprint claimed that it included Mendelsohn in the RIF because of poor job performance. Mendelsohn claimed age bias in the decision.

At trial, she sought to call five other former Sprint employees, all over the age of 40, to testify that they too suffered age discrimination at Sprint. Sprint objected on the grounds that none of those five employees had worked for the same supervisor who had made the decision to lay off Mendelsohn. The district court agreed, and ruled that only workers laid off by the same supervisor could be called to testify. Ultimately, the jury ruled in Sprint's favor.

The 10th Circuit reversed, ruling that a district court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. It rejected Sprint's contention that the testimony was irrelevant because the witnesses were not terminated by the same supervisor as Mendelsohn. The court concluded that Mendelsohn was entitled to show that there was an unwritten "company-wide policy" of discrimination, under which multiple supervisors, and not just Mendelsohn's, were participating. Further, the court was unconcerned whether there was any evidence substantiating the existence of such a policy other than the plaintiff's subjective belief. Instead, the court found that the evidence is relevant and admissible because a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

There are any number of reasons why this decision should be reversed. In a discrimination case liability can only be shown by demonstrating discriminatory intent on the part of the decisionmaker (i.e, the person who made the relevant employment decision). Mendelsohn's five "me, too" witnesses, however, could offer nothing to show that Mendelsohn's supervisor acted with discriminatory intent. Additionally, no one had any proof that the various different decisionmakers were acting under some common scheme or plan, other than their own unsupported subjective beliefs. I would concede that the case would be different if there was some independent corroboration of a company-wide policy. Finally, I question the appellate court's reversal of a district court's discretionary evidentiary ruling.

This case will also be interesting from a Court-watching perspective, as it will be the third substantive employment decision out of the the Roberts Court. Last term, the Court was 1-1 in employments cases, with the Ledbetter pay discrimination case coming down for the employer, and the Burlington Northern retaliation decision for the employee. My prediction — a reversal with a holding that "me, too" evidence is not per se admissible in discrimination cases. Dicta will make it clear that such evidence is relevant when it is from the same decisionmaker, or from a different decisionmaker with independent evidence of a company-wide policy of discrimination.

A copy of the oral argument transcript is available from the Supreme Court here.

What else I'm reading this week #7

It's been a busy week in the blogosphere. Everyone is back at work, having digested their turkey and probably having started their holiday shopping. So, it is appropriate that we begin our weekly roundup with the following:

Beating the Crowds: Online Shopping at Work?, from HR World, on the monitoring of employees' use of work computers for holiday shopping.

Is the Family Leave Act Too Soft or Too Tough?, from the Wall Street Journal's Career Journal, debating whether the FMLA is too small of a benefit to employees or too big a burden to employers.

Exploring Tough Questions on E-Mail Confidentiality, from Ediscoveryinfo, noting the importance of reminding your employees that e-mails are not confidential. The advice that I always tell people in regards to whether to put something in an email -- if you do not want it read by your boss, shown to a jury, published on the front page of your local newspaper, or seen by your mother, it is probably best not to send it.

Business Week: "Unions: Less Impact and a Lower Profile", from The Union-Free Employer, commenting on the shrinking importance of labor unions in today's business climate.

Layoffs and Reductions in Force: Five Things every HR Generalist should know, from the Pennsylvania Employment Law Blog, giving a rundown of hot-button issues for mass layoffs and reductions in force.

Finally, we started with an issue of importance for the holiday season, and we'll finish with a couple of others:

Employer Liability at Office Holiday Parties - Beyond Sexual Harassment, Part I and Part II, from the Connecticut Employment Law Blog, summarizing the legal issues other than sexual harassment liability that can arise from over-lubricated employees at holiday parties.

For another reason why not to overindulge at the office holiday party:

Cheers!

Computer awareness should be important part of harassment policies and training

Danial Schwartz at the Connecticut Employment Law Blog posted yesterday on a case from the Second Circuit, which held that the mere presence of pornography in the workplace can be enough to create an objectively hostile work environment. Danial's point is similar to one that I wrote about couple of weeks ago, that businesses must take all harassment complaints seriously through prompt and thorough investigations. (See Remedial action must be meaningful to save employer from harassment liability).

Danial's post raises another important issue. Computers, email, and the Internet have become indispensable tools in most workplaces. They also make pornography readily available at the click of a mouse or the strike of a key. If courts are going to view the mere presence of pornography in the workplace sufficient to state a claim for sexual harassment, then employers must be vigilant about policing against it. This policing requires three important steps:

1. Implement a technology use policy (which includes computers, email, and the Internet), which patently forbids the downloading, display, or viewing of pornography, and makes it a terminable offense.
2. Incorporate training on the appropriate use of technology into your annual or every-other-year harassment training.
3. Consistently enforce the policy.

As I've repeatedly said, there is no such thing as a bulletproof employer. Taking these three simple, proactive steps, however, will go a long way towards limiting your risk and exposure should an employee file a harassment lawsuit based on workplace pornography.

Carnival of HR #21

The Carnival of HR (#21 for those keeping count) is available at Race in the Workplace. For those unfamiliar with the Carnival of HR, it is a traveling semimonthly compilation of the best HR-related posts in the blogosphere. Please jump on over to Race in the Workplace and support the efforts of the many bloggers who are linked.