Articles - Employee / Labor Relations

Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.

The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally or unintentionally 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 can also 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.

In 1978, the U.S. Civil Service Commission, the Department of Labor, the Department of Justice, and the Equal Employment Opportunity Commission jointly adopted the Uniform Guidelines on Employee Selection Procedures to establish uniform standards for employers for the use of selection procedures and to address adverse impact, validation, and record-keeping requirements. The Uniform Guidelines document a uniform federal position in the area of prohibiting discrimination in employment practices on the basis of race, color, religion, sex, or national origin. 

The Uniform Guidelines outline the requirements necessary for employers to legally defend employment decisions based upon overall selection processes and specific selection procedures. The Uniform Guidelines are not in and of themselves legislation or law; however, through their reference in a number of judicial decisions, they have been identified by the courts as a source of technical information and have been given deference in litigation concerning employment issues. In addition to the Uniform Guidelines themselves, a separate document entitled Questions and Answers on the Uniform Guidelines on Employee Selection Procedures was released in 1979 to provide further clarification and a common interpretation of the Uniform Guidelines .

The UGESP applies to both inservice placement actions and external hiring practices.

UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory.

• UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.

Elements used in a selection process must be job-related, requiring criteria used to determine the candidates referred and selected be related to the job to be filled. This is not a new concept. Merit principles and job- relatedness have been long-standing requirement

A selection procedure is any measure, combination of measures, or procedures used as a basis for an employment decision; this would apply, but not be limited to, job analysis, Crediting Plan, interviews, and the selection process itself.

All these documents and the processes which develop these documents, which support the referral and selection of candidates, must clearly contain only job-related criteria. The documents become part of the overall documentation supporting selection procedures used.

PART 1607—UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES (1978)

Section Contents

General Principles
§ 1607.1   Statement of purpose.
§ 1607.2   Scope.
§ 1607.3   Discrimination defined: Relationship between use of selection procedures and discrimination.
§ 1607.4   Information on impact.
§ 1607.5   General standards for validity studies.
§ 1607.6   Use of selection procedures which have not been validated.
§ 1607.7   Use of other validity studies.
§ 1607.8   Cooperative studies.
§ 1607.9   No assumption of validity.
§ 1607.10   Employment agencies and employment services.
§ 1607.11   Disparate treatment.
§ 1607.12   Retesting of applicants.
§ 1607.13   Affirmative action.

Technical Standards
§ 1607.14   Technical standards for validity studies.

Documentation of Impact and Validity Evidence
§ 1607.15   Documentation of impact and validity evidence.

Definitions
§ 1607.16   Definitions.

Appendix
§ 1607.17   Policy statement on affirmative action (see section 13B).
§ 1607.18   Citations.

For future reference the Uniform Guidelines are available on the U>S Department of Labor's Website at the follwoing web address:
http://www.access.gpo.gov/nara/cfr/waisidx_00/29cfr1607_00.html

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