Validate Employment Tests to Avoid Lawsuits

If you administer tests during the hiring process, make sure they are lawful

By Roy Maurer May 16, 2016
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Employers that use hiring tests must ensure that the tests are job-related and consistent with business necessity, as required under the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures (UGESP).

The regulations apply to all employers that use employment tests, and encompass written tests, strength and agility tests, interviews, and virtually any other assessment device or methodology used in making employment-related decisions.

“Employers have to keep in mind that the use of such tests is governed by Title VII of the Civil Rights Act of 1964,” said Lynn Clements, director of regulatory affairs for HR consulting firm Berkshire Associates, based in Columbia, Md.

Employers can’t use these tests to intentionally discriminate against candidates based on protected characteristics, such as by only giving the test to individuals of a particular national origin, Clements said. “Even a neutral selection procedure may run afoul of Title VII if it has a disparate impact based on race, color, religion, sex or national origin,” she added.

On May 11, the Office of Federal Contract Compliance Programs (OFCCP) settled charges of gender-based hiring discrimination with a food distribution contractor based on a strength test that allegedly discriminated against female applicants at two warehouse locations.

Michigan-based Gordon Food Service administered a strength test using isokinetic testing technology and equipment to measure upper and lower body resistance. The test was intended to gauge an applicant’s ability to handle the physical demands of the job and determine the applicant’s risk of injury, according to the settlement.

But OFCCP investigators found that the test had a statistically significant adverse impact on female applicants, resulting in the hiring of only six females over a period when nearly 300 males were hired.

“Too often we find tests like the one used in this case that exclude workers from jobs that they can in fact perform,” said Patricia Shiu, director of the OFCCP, in a press release. The agency stated that the test was “more stringent than the actual job requirements at Gordon Food,” and was not validated.

Gordon Food Service agreed to pay $1.85 million in back wages and benefits to 926 women, hire 37 of the female applicants, and stop using the strength test. The company, which provides products to the U.S. Departments of Defense and Agriculture and to the Federal Prison System, did not admit liability.

How to Validate Hiring Tests

Use recognized methods of test validation (criterion, construct and content measures) to show that employment testing is compliant. Under the UGESP, it is key that an employer demonstrate validity of the test as it applies to its own workplace and specific jobs, Clements said. “To do this, employers usually must retain a qualified industrial psychologist or testing expert. Relying on a test provider’s general validation studies can be dangerous.”

Clements further explained that employers can only demonstrate that a test is job-related and a business necessity if it tests for abilities that workers will need on the job. For example, an employer can test candidates’ ability to lift 50 pounds if the job actually requires lifting 50 pounds. “On the other hand, using a strength test that evaluates an individual’s general strength, or a candidate’s ability to lift 75 pounds when the job only requires lifting 30 pounds,” would not be compliant. Similarly, if an employer’s use of a strength test at the hiring stage ultimately translated into fewer injuries to workers, then such a test “might be job-related, as long as the employer could establish that the reduction in injuries was actually tied to the use of the test,” Clements said. But the same test might not be job-related if the reduction in injuries was actually due to job rotation or other workplace changes, she added.

And even if an employer can show that a test is job-related, the person challenging the test can prevail in a lawsuit if he or she can show there is a less discriminatory alternative that would meet the employer’s business need. “For example, is another test available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group?” Clements asked. “This issue often arises when an employer uses a test that was designed and validated many years ago, and the employer continues to use the test without considering whether the job has changed or new tests have been developed that might measure the same skills but have less of an impact on a protected group.”

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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