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 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.
On May 16, 2007, the EEOC held a public meeting on Employment Testing and
Screening. Witnesses addressed legal issues related to the use of employment
tests and other selection procedures. (To see the testimony of these witnesses,
please see the EEOC’s website at http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html.)
This fact sheet provides technical assistance on some common issues relating
to the federal anti-discrimination laws and the use of tests and other selection
procedures in the employment process.
Background
Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with
Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act
of 1967 (ADEA) prohibit the use of discriminatory employment tests and
selection procedures.
There has been an increase in employment testing due in part to post 9-11
security concerns as well as concerns about workplace violence, safety, and
liability. In addition, the large-scale adoption of online job applications
has motivated employers to seek efficient ways to screen large numbers of
online applicants in a non-subjective way.
The number of discrimination charges raising issues of employment testing,
and exclusions based on criminal background checks, credit reports, and other
selection procedures, has been increasing since FY 2003, although the absolute
number of such charges is still small. In FY 2003 there were 26 such charges,
and in FY 2006 the number had risen to 141.
Types of Employment Tests and Selection Procedures
Many employers use employment tests and other selection procedures in making
employment decisions. Examples of these tools, many of which can be administered
online, include the following:
Cognitive tests assess reasoning, memory, perceptual speed and accuracy,
and skills in arithmetic and reading comprehension, as well as knowledge of a
particular function or job;
Physical ability tests measure the physical ability to perform a
particular task or the strength of specific muscle groups, as well as strength
and stamina in general;
Sample job tasks (e.g., performance tests, simulations, work samples, and
realistic job previews) assess performance and aptitude on particular tasks;
Medical inquiries and physical examinations, including psychological
tests, assess physical or mental health;
Personality tests and integrity tests assess the degree to which a person
has certain traits or dispositions (e.g., dependability, cooperativeness,
safety) or aim to predict the likelihood that a person will engage in certain
conduct (e.g., theft, absenteeism);
Criminal background checks provide information on arrest and conviction
history;
Credit checks provide information on credit and financial history;
Performance appraisals reflect a supervisor’s assessment of an
individual’s performance; and
English proficiency tests determine English fluency.
Governing EEO Laws
Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination based on race, color,
religion, sex, or national origin.
With respect to tests in particular, Title VII permits employment tests
as long as they are not “designed, intended or used to discriminate because
of race, color, religion, sex or national origin.” 42 U.S.C. § 703(h). Title
VII also imposes restrictions on how to score tests. Employers are not
permitted to (1) adjust the scores of, (2) use different cutoff scores for,
or (3) otherwise alter the results of employment-related tests on the basis
of race, color, religion, sex, or national origin. Id. at § 703(l).
Title VII prohibits both “disparate treatment” and “disparate impact”
discrimination.
Title VII prohibits intentional discrimination based
on race, color, religion, sex, or national origin. For example, Title VII
forbids a covered employer from testing the reading ability of African
American applicants or employees but not testing the reading ability of
their white counterparts. This is called “disparate
treatment” discrimination. Disparate treatment cases typically
involve the following issues:
Were people of a different race, color, religion, sex, or national
origin treated differently?
Is there any evidence of bias, such as discriminatory statements?
What is the employer’s reason for the difference in treatment?
Does the evidence show that the employer’s reason for the difference
in treatment is untrue, and that the real reason for the different
treatment is race, color, religion, sex, or national origin?
Title VII also prohibits employers from using neutral tests or
selection procedures that have the effect of
disproportionately excluding persons based on race, color, religion, sex,
or national origin, where the tests or selection procedures are not
“job-related and consistent with business necessity.” This is called “disparate impact” discrimination.
Disparate impact cases typically involve the following issues:
Does the employer use a particular employment practice that has a disparate impact on the basis of race, color, religion,
sex, or national origin? For example, if an employer requires that all
applicants pass a physical agility test, does the test disproportionately
screen out women? Determining whether a test or other selection procedure
has a disparate impact on a particular group ordinarily requires a
statistical analysis.
If the selection procedure has a disparate impact based on race,
color, religion, sex, or national origin, can the employer show that the
selection procedure is job-related and consistent with business
necessity? An employer can meet this standard by showing that it
is necessary to the safe and efficient performance of the job. The
challenged policy or practice should therefore be associated with the
skills needed to perform the job successfully. In contrast to a general
measurement of applicants’ or employees’ skills, the challenged policy or
practice must evaluate an individual’s skills as related to the particular
job in question.
If the employer shows that the selection procedure is job-related and
consistent with business necessity, can the person challenging the
selection procedure demonstrate that there is a less
discriminatory alternative available? For example, is another
test available that would be equally effective in predicting job
performance but would not disproportionately exclude the protected group?
See 42 U.S.C. § 703 (k). This method of analysis is consistent with the
seminal Supreme Court decision about disparate impact discrimination, Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection
Procedures or “UGESP” under Title VII. See 29 C.F.R. Part 1607.1 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.
Title I of the Americans with Disabilities Act (ADA)
Title I of the ADA prohibits private employers and state and local
governments from discriminating against qualified individuals with
disabilities on the basis of their disabilities.
The ADA specifies when an employer may require an applicant or employee
to undergo a medical examination, i.e., a procedure or test that
seeks information about an individual’s physical or mental impairments or
health. The ADA also specifies when an employer may make “disability-related
inquiries,” i.e., inquiries that are likely to elicit information
about a disability.
When hiring, an employer may not ask questions about disability or
require medical examinations until after it makes a
conditional job offer to the applicant. 42 U.S.C. §12112 (d)(2);
After making a job offer (but before the person starts working), an
employer may ask disability-related questions and conduct medical
examinations as long as it does so for all individuals entering
the same job category. Id. at § 12112(d)(3); and
With respect to employees, an employer may ask
questions about disability or require medical examinations only if doing
so is job-related and consistent with business necessity.
Thus, for example, an employer could request medical information when it
has a reasonable belief, based on objective
evidence, that a particular employee will be unable to perform
essential job functions or will pose a direct threat because of a medical
condition, or when an employer receives a request for a reasonable
accommodation and the person’s disability and/or need for
accommodation is not obvious. Id. at § 12112(d)(4).
The ADA also makes it unlawful to:
Use employment tests that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities
unless the test, as used by the employer, is shown to be job-related and
consistent with business necessity. 42 U.S.C. § 12112(b)(6);
Fail to select and administer employment tests in the most effective
manner to ensure that test results accurately reflect the skills, aptitude
or whatever other factor that such test purports to measure, rather than
reflecting an applicant’s or employee’s impairment. Id. at
§ 12112(b)(7); and
Fail to make reasonable accommodations, including in the
administration of tests, to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or
employee, unless such accommodation would impose an undue hardship. Id. at § 12112(b)(5).
The Age Discrimination in Employment Act (ADEA)
The ADEA prohibits discrimination based on age (40 and over) with
respect to any term, condition, or privilege of employment. Under the ADEA,
covered employers may not select individuals for hiring, promotion, or
reductions in force in a way that unlawfully discriminates on the basis of
age.
The ADEA prohibits disparate treatment discrimination,
i.e., intentional discrimination based on age. For example, the ADEA forbids
an employer from giving a physical agility test only to applicants over age
50, based on a belief that they are less physically able to perform a
particular job, but not testing younger applicants.
The ADEA also prohibits employers from using neutral tests or selection
procedures that have a discriminatory impact on persons
based on age (40 or older), unless the challenged employment action is based
on a reasonable factor other than age. Smith v. City of
Jackson, 544 U.S. 228 (2005). Thus, if a test or other selection
procedure has a disparate impact based on age, the employer must show that
the test or device chosen was a reasonable one.
Recent EEOC Litigation and Settlements
A number of recent EEOC enforcement actions illustrating basic EEO principles
focus on testing.
Title VII and Cognitive Tests: Less Discriminatory
Alternative for Cognitive Test with Disparate Impact. EEOC v. Ford
Motor Co. and United Automobile Workers of America, involved a
court-approved settlement agreement on behalf of a nationwide class of African
Americans who were rejected for an apprenticeship program after taking a
cognitive test known as the Apprenticeship Training Selection System (ATSS).
The ATSS was a written cognitive test that measured verbal, numerical, and
spatial reasoning in order to evaluate mechanical aptitude. Although it had
been validated in 1991, the ATSS continued to have a statistically significant
disparate impact by excluding African American applicants. Less discriminatory
selection procedures were subsequently developed that would have served Ford’s
needs, but Ford did not modify its procedures. In the settlement agreement,
Ford agreed to replace the ATSS with a selection procedure, to be designed by
a jointly-selected industrial psychologist, that would predict job success and
reduce adverse impact. Additionally, Ford paid $8.55 million in monetary
relief.
Title VII and Physical Strength Tests: Strength Test
Must Be Job-Related and Consistent with Business Necessity If It
Disproportionately Excludes Women. In EEOC v. Dial Corp., women
were disproportionately rejected for entry-level production jobs because of a
strength test. The test had a significant adverse impact on women – prior to
the use of the test, 46% of hires were women; after use of the test, only 15%
of hires were women. Dial defended the test by noting that it looked like the
job and use of the test had resulted in fewer injuries to hired workers. The
EEOC established through expert testimony, however, that the test was
considerably more difficult than the job and that the reduction in injuries
occurred two years before the test was implemented, most likely due to
improved training and better job rotation procedures. On appeal, the Eighth
Circuit upheld the trial court’s finding that Dial’s use of the test violated
Title VII under the disparate impact theory of discrimination. See http://www.eeoc.gov/press/11-20-06.html
ADA and Test Accommodation: Employer Must Provide
Reasonable Accommodation on Pre-employment Test for Hourly, Unskilled
Manufacturing Jobs. The EEOC settled EEOC v. Daimler Chrysler
Corp., a case brought on behalf of applicants with learning disabilities
who needed reading accommodations during a pre-employment test given for
hourly unskilled manufacturing jobs. The resulting settlement agreement
provided monetary relief for 12 identified individuals and the opportunity to
take the hiring test with the assistance of a reader. The settlement agreement
also required that the employer provide a reasonable accommodation on this
particular test to each applicant who requested a reader and provided
documentation establishing an ADA disability. The accommodation consisted of
either a reader for all instructions and all written parts of the test, or an
audiotape providing the same information.
Employer Best Practices for Testing and Selection
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 UGESP.
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 further background on experiences and challenges encountered by
employers, employees, and job seekers in testing, see the testimony from the
Commission’s meeting on testing, located on the EEOC’s public web site at: http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html.
For general information on discrimination Title VII, the ADA and the ADEA
see EEOC’s web site at:
http://www.eeoc.gov/abouteeo/overview_practices.html and
http://www.eeoc.gov/abouteeo/overview_laws.html
Footnote
1The Departments of Labor and Justice and the
Office of Personnel Management (then called the Civil Service Commission) issued
UGESP along with the EEOC.
