EEOC Issues Guidance Regarding Employment Tests and Selection Procedures – December 3, 2007

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new fact sheet reminding employers to be careful in deciding how to use and score employment tests. The guidance was issued in response to an increase in discrimination charges related to employment testing.

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 discriminatory employment testing. Employers can be liable for violating these laws not only if they use employment tests to discriminate intentionally, but also if they use neutral testing procedures that “disproportionately exclude people in a particular group by race, sex, or other covered basis.”

Where a test or other selection procedure has a disparate impact on members of a protected class, the employer must show that the test or procedure “is job-related and consistent with business necessity.” If the employer can demonstrate these requirements, employees can still argue that a “less discriminatory alternative” is available to predict job performance.

The fact sheet highlights that employment tests also may be raise ADA claims if they include unlawful disability-related inquiries, screen out disabled individuals based on standards that are not job-related and consistent with business necessity, or are administered in a way that fails to provide reasonable accommodations to otherwise qualified individuals with disabilities.

Finally, the EEOC fact sheet provides a list of “best practices.” Among other things, the EEOC suggests that employers “ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used.” Employers who rely on tests validated years ago may be violating the law. The EEOC recommends that employers stay informed about changes in job requirements and modify testing procedures accordingly.

According to the EEOC, “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.”