Even if your selection practices are purely objective and neutral, you’re not immune from liability for their “disparate impact.” Bottom line—it’s time to put your tests to the test.
What’s considered a test in terms of hiring? Basically it’s any yardstick or evaluative tool you use to help you select employees.
One of the theoretical virtues of tests is their impartiality. And in many respects, tests deliver on that promise. They clearly help to avoid “disparate treatment,” that is, overt discrimination such as refusing to hire someone because he or she is a member of a protected group.
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But impartial testing doesn’t necessarily guard against “disparate impact” discrimination. That happens when a test is neutral “on its face” but discriminatory in its results.
For example, a requirement that all workers who pack customer orders must be able to lift 100 pounds is neutral on its face, but discriminatory in impact, as it will likely screen out many more women than men.
Even so, the test would be OK if:
– It is job-related and consistent with business necessity (That is, you really have to lift 100 pounds to do the job, and it is an important part of the job.) and
-There is no reasonable alternative test that would have a less discriminatory effect.
HR.BLR.com notes that there are two key measures of tests: validity and reliability.
Validity—A test is valid if it really measures what it’s meant to measure.
Reliability—A test is reliable if an individual will achieve similar scores each time he or she retakes the test.
Test providers typically have done validity and reliability studies for the tests they supply, and should be able to furnish their results to you. That’s a good reason to get your tests from a trusted source.
Also, be sure to use the test only for the purpose for which it has been validated.
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Laws and Testing
Here, again courtesy of HR.BLR.com, is what the main federal laws say about testing:
Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may use “any professionally developed ability test,” provided that the results are not used to discriminate on the basis of race, color, religion, sex, or national origin. Tests that have an “adverse impact” on protected groups without being job-related and justified by business necessity are discriminatory, according to EEOC guidelines that have been upheld by the U.S. Supreme Court.
Under the Americans with Disabilities Act (ADA), tests that are job-related and are intended to measure an individual’s capacity and propensity to successfully perform a job may be given at any time.
However, if they are designed to assess mental impairments or general psychological health (or used for that purpose), they may be considered “medical exams” under the ADA. Medical exams and disability inquiries may not be conducted until after a conditional offer of employment has been made, and then only if the inquiry or exam is required of all employees in that job.
Physical agility tests in which applicants demonstrate their ability to perform actual or simulated job-related tasks are not considered medical examinations and may be administered at the pre-offer stage.
The ADA also requires employers to make reasonable accommodations to a qualified individual with a disability, including accommodations needed to administer a test, unless to do so creates an undue hardship.
The Age Discrimination in Employment Act (ADEA) prohibits employers from using tests and selection procedures that discriminate against applicants or employees who are at least 40 years of age. If a test or screening procedure has an adverse impact on older applicants or employees, the employer must show that the results were based on a “reasonable factor other than age.”
Fix Testing Problems Now
If any of your job qualification standards exclude a class of individuals, be sure that the standards are related to the job and consistent with business necessity. Fix any problems now, because, by their nature, these situations are ripe for class-action suits.
In tomorrow’s Advisor: One expert’s “stealth” testing violations and an introduction to a policy program that helps update all your HR policies.