It is reported that more than 30% employers in the United States use pre-employment tests to assist in hiring decisions.  Presumably, the test measures job related skills. Most of these tests fall into the following five categories – skills tests, aptitude tests, personality tests, integrity tests and drug tests. This article explores relevant issues related to pre-employment testing in general.

The manner of testing and the content of testing can be critical to defending the practice of using pre-employment test.  For instance, are non-job related skill and aptitude testing, which do not predict a prospective employee ability to perform a specific job inherently defective and discriminatory? Clearly, the answer is yes.  From a scientific perspective, if what you measure is not valid and reliable, it has little value.  However, if it does prove reliable and valid, then one needs to ask another question: is it legally acceptable?

In1964, in Myart v. Motorola supported the notion that standardized tests on which minorities did not perform as well as whites were entirely prohibited.  Notwithstanding, Title VII provided that it did not bar the use of "...any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin." So, then, which tests are usable and legally acceptable?

It is well known that even tests that have an unintentional discriminatory intent are prohibited if the test has a disparate impact on protected minorities. This query was clarified in Griggs v Duke Power Co., when the court stated that tests must bear a demonstrable relationship to successful performance of the jobs for which it was used. So, what does this mean? It means that if an employer is going to provide a test, it must be job related and be able to predict performance. But this is easier said than done for a myriad of reasons.

For instance, the EEOC’s Uniform Guidelines on Employee Selection Procedures provide that any test that disparately disqualifies members of protected groups must be shown to be job related through validation studies. It is generally believed that unless you are a Fortune 500 company, these studies are very expensive for most employers to develop, implement and use. Small business owners that purchase off the shelf tests from a reputable company may still have to provide proof the tests must bear a demonstrable relationship to successful performance of the jobs for which it was used. The lesson may be that unless one has an institutional research staff on board, this can be a very high burden to meet.

Additionally, The Americans with Disabilities Act demands that employer administer tests in a manner that ensures that one with a disability is accurately tested.  In fact, reasonable accommodations need to be provided to tests takers, if warranted, which begs the question, how practical and feasible are these requirements for the ordinary business owner.

EEOC’s Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets `professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not,without more, justify its use within the meaning of Title VII." The EEOC’s position has been further amplified in Guidelines on Employee Selection Procedures, 29 CFR 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970).

These guidelines require that employers using tests have available "data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." So, a simple typing test seeking accuracy and speed, arguably, meets this definition. A simple math test can be used for an accounting job. But, how about tests that measure more complicated technical tasks?

It was the opinion on the court in Griggs that "… Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question”.  So, what is the prudent course of action for a business owner who is using pre-employment tests?

 

1. Test ALL applicants who apply for a specific open/advertised job and who meet all minimum requirements for the job.

2. Testing results should NOT be used selectively as a means for either justifying the  viability of a candidate when another candidate has not had the opportunity to take the test(s), or to adversely affect someone who has taken the test(s) in favor of another applicant who was not required by the employer to take the same test(s).

3. Not all applicants must be tested if they are not otherwise qualified.  For example, if an applicant has education, background or experience unrelated to a specific job requirement, they can be disqualified and not tested.

4. All other applicants who share similar qualification for the job MUST be offered the same opportunity to take the pre-employment test(s).

5. Tests that will be administered as a pre-employment measure should be administered to employees currently holding the same or similar position in order to establish a "baseline" from which to compare test results of job applicants.

6. To obtain this baseline, you need to hire a credible company or professional who can perform validity and reliability measures fairly. In case of personality traits, they must identify the job-related personality traits that are common among successful employees. Then, apply the baseline results fairly using that data as a consideration for employment.

7. This data cannot be used as the sole determining factor for employment.  Personality traits are only one aspect of the job evaluation process, as is education, background, and experience.

Even when no testing is involved, business owners have been exposed to challenges.  In Watson v. Fort Worth Bank & Trust, a case that involved a charge of discrimination when no testing was involved, the Supreme Court's opinion was that an employer could insulate itself from liability under Griggs simply by combining a subjective component, such as a brief interview in addition to making objective tests non-determinative, thusly lowering the risk of attracting a disparate impact challenge. Using a variety of reasonable and business related methods to select an applicant for a job is a very defensible way to minimize legal challenges.

This article is not intended to be a legal opinion and it should not be taken as such. It should be considered to be personal commentary on a very interesting employment subject.

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Biography

Conchita Franco Serri, an employment discrimination and employment practices expert, has over sixteen years of Human Resources experience specializing in employee and labor relations, equal employment opportunity and affirmative action compliance.

She is President of Serri Compliance Training. In her capacity as consultant, trainer and coach, she partners with business executives seeking solutions to complex issues of gender, race, ethics and leadership. In her investigative capacity, she successfully investigated and mediated over two hundred charges of unlawful discrimination, harassment and retaliation which resulted in no litigation.

She is the former Director of Affirmative Action and disabilities compliance officer at Santa Clara University for 15 years where she was the principal investigator and mediator of civil rights violations. Conchita is a disabilities expert in the area of reasonable accommodations, disability policy and performs Section 504 compliance audits for places of public accommodations, specializing in independent living facilities, residential care facilities, skilled nursing facilities and acute care centers, HUD’s Section 8 Senior Housing facilities, and Board and care homes. She can help these establishments qualify to obtain loans and grants and for California State insurance funds, comply with federal and state laws, limit their exposure to liability and maximize their marketing efforts.

She is a graduate of Harvard University’s Graduate School of Education where she obtained her Masters Degree and Boston College Law School where she obtained her law degree.  Her most recent peer-reviewed article is entitled: “Self-Compassion and the Dynamics of Investigating Sexual Harassment”, which was published in the Business Communication Quarterly, December 2006.

She is a published author and the recipient of CHOICE Outstanding Academic Book of the Year, 1997 for “Notable Latino Americans: A Biographical Dictionary”, a Greenwood Press publication. She enjoys dancing Argentine tango and watching foreign films.  She can be reached at: conchita@serricompliance.com

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