Employment Tests: New EEOC Fact Sheet Highlights Avoiding Bias When Screening Job Candidates and Employees; Five Best Practices

Selecting the best person for the job—be it a new hire or a candidate for promotion—is crucial to any organization’s success. But if you’re using tests and other selection procedures to help you make sound employment decisions, it’s important to be aware of how federal antibias laws limit the use of screening tools. To that end, the U.S. Equal Employment Opportunity Commission (EEOC) has published a new fact sheet discussing common issues that come up when employers use tests and other selection methods, along with best practices.

Types of Tests and Selection Procedures

The EEOC provides these examples of tests and other selection procedures that, if you’re not careful, can violate antibias laws:

• cognitive tests (to assess reasoning, memory, arithmetic and reading comprehension skills, etc.)
• physical ability tests
• sample job tasks (such as performance tests and simulations)
• medical inquiries and physical examinations, including psychological tests
• personality and integrity tests
• criminal background checks
• credit checks
• performance appraisals
• English proficiency tests

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The fact sheet provides an overview of how the federal antibias laws apply to tests and other selection tools:

• Title VII. Under this law—which bars bias based on race, color, religion, sex, or national origin—employment tests designed, intended, or used to discriminate are illegal. In addition, the law restricts test scoring; employers cannot 1) adjust the scores of, 2) use different cutoff scores for, or 3) otherwise alter test results based on race, sex, etc.

  Title VII bars both disparate treatment and disparate impact. An example of disparate treatment (or intentional) bias would be testing African-American applicants’ reading ability but not testing white applicants for this. Disparate impact involves the use of neutral tests or selection procedures that disproportionately exclude candidates based on a protected characteristic, such as a physical agility test that is administered to all job applicants but that disproportionately eliminates women. The employer must be able to demonstrate that the agility test is job-related and necessary to safely and efficiently perform the job. The person challenging the test, however, can still prove a Title VII violation if he or she can show that there is a less discriminatory alternative screening method available.

• Americans with Disabilities Act (ADA). This law, which prohibits discrimination against qualified individuals with disabilities based on their disabilities, specifies when an employer may make disability-related inquiries and/or require medical examinations. When hiring, an employer may not ask questions about disability or require medical exams until after extending a conditional job offer to the applicant. Between making a job offer and the person’s start of work, an employer may ask disability-related questions and conduct medical exams if it does so for all individuals in the same job category. An employer may ask current employees questions about disability or require medical exams only if they are job-related and there is a strong business reason for this information.

  The ADA also bars: 1) using employment tests that screen out disabled individuals or a class of disabled individuals unless the test is job-related and consistent with business necessity; 2) failing to select appropriate tests and administer them in the most effective way to ensure that test results accurately reflect the skills, aptitude, or whichever factor the test measures; and 3) not making reasonable accommodations, including in the administration of tests, for known disabilities.

• Age Discrimination in Employment Act (ADEA). This law bars discrimination based on a person being age 40 or over. The ADEA prohibits disparate treatment (or intentional) discrimination, such as giving a physical agility test only to applicants over age 50, as well as the use of neutral tests or selection procedures that have a discriminatory impact based on age, unless the challenged employment action is based on a reasonable factor other than age.

Five Best Practices

The EEOC recommends these best practices for avoiding discrimination claims based on tests and other screening devices:

1. Don’t use tests and other selection procedures in such a way that they’re biased against people with protected characteristics.

2. Make sure that your test or selection procedure is job-related and its results are appropriate for your purposes. Although a test vendor’s materials supporting a test’s validity in this regard may be helpful, you still bear legal responsibility for ensuring that tests meet this standard.

3. If a test or selection procedure that is job-related and necessary for business reasons screens out a protected group, determine whether there is an equally effective alternative method that has less of an impact and, if so, use that alternative.

4. To ensure that selection tools continue to predict job success, monitor job requirement changes and update the test or selection procedures accordingly.

5. A test or selection procedure can be an effective management tool, but it shouldn’t be used without understanding its effectiveness and limitations for the company, whether it is appropriate for a specific job or position, and whether it can be appropriately administered and scored within the bounds of antibias laws.

Additional Resource:

EEOC fact sheet