Would the EEOC Like Your Employment Test?

Posted by Edward Sharkey on Wed, 02/10/2016 - 05:00

A lot of businesses test prospective employees. Pre-employment tests typically assess cognitive skills, personality traits, and language proficiency - all sorts of information that a reasonable business would want to know before adding a person to their team. Intuition or common sense, however, is not the legal standard. The EEOC looks at such tests pretty closely. They are interested in whether a test could have an outsize impact on any group protected by Title VII of the Civil Rights Act.

In one 2015 lawsuit, the EEOC alleged that an assisted living facility administered a pre-employment test that intentionally discriminated against African applicants. The EEOC claims that the written examination did not adequately assess essential job skills and contained questions known to confuse individuals who did not grow up speaking English. Additionally, the EEOC claimed that African applicants were not given partial credit for partially correct responses.

In a different case, Target will pay $2.8 million dollars to settle an EEOC finding that three of their employment assessments for upper level positions screened out applicants based on race and sex. One of the tests required applicants to undergo a psychological evaluation prior to receiving an offer of employment. As part of the settlement, Target has discontinued the use of tests and implemented procedures to analyze the impact of pre-employment tests on protected groups.

If your business uses pre-employment tests to evaluate job candidates, ask yourself the following:

1. Does the test actually measure skills essential to the job?

2. Do I have a system in place to analyze the impact of the test on protected groups?

3. Have I properly trained test administrators to understand and mitigate the potential for adverse impact?

4. If the test is found to have an adverse impact on a protected group, is there an equally effective alternative assessment that has less of an adverse impact?

If you are unsure of the answer to these questions, you may find it hard to defend against a prospective employee who complains about not being hired after having to take the test.

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