What is the purpose of an employment test? The answer: to reduce the number of candidates for a position, thus making the selection process more manageable. Unfortunately, using an improper test will potentially make the process more biased and put the organization using the improper test at risk for litigation if the test is proven unreliable. “Tests”, be they cognitive tests or tests of physical ability, can be used, and have been used, to screen candidates out of a position. The Equal Employment Opportunity Commission (EEOC) has guidelines requiring tests, and also interviews, be both valid and reliable. This means that a test needs to actually test what it claims to be testing, and it has to do so time after time. The test must also be job-related and cannot be something selected on someone’s whim. This means each test must be “properly validated” as “job-related” and “consistent with business necessity” under the Uniform Guidelines on Employment Selection Procedures (UGESP), according to attorneys Katharine H. Parker and Daniel L. Saperstein, writing for Lexology.com.
They summarize a suit, filed by the EEOC, against an assisted living facility that did not follow these guidelines and used a test that had an “English as a Second Language (ESL) component” that discriminated against Africans on the basis of their national origin. Additionally, the EEOC maintained the company did not conduct a job analysis to ensure the test measured essential functions related to the job. The company was unable to prove that a written test they had given as part of a training course had any relation to the essential skills required for a personal care provider, the job for which the test was given.
Another such case was brought against the Ford Motor Company. According to The EmpLAWyerologist Blog, Ford used a cognitive test to measure “verbal, numerical and spatial reasoning, purportedly to evaluate mechanical aptitude.” Though Ford had this test independently validated, it “consistently excluded a disproportionate number of African-American applicants.” The EEOC showed that another test was available that met the needed job standards and did not have a discriminatory effect on African-American candidates. Ford’s refusal to use this other test cost them $8.5 million in fines.
Pre-employment tests, conducted under the right circumstances, can help provide an enhanced perception of objectivity. However, they must meet the standards of non-discrimination put forth in the Uniform Guidelines. Unfortunately for Ford, the test they used failed to meet that standard.
The EEOC has published useful guidelines and best practices. These include:
Meeting these standards will help ensure that the test you are using as a selection device will meet the standards of the EEOC and help you avoid fines like Ford incurred.
Other parts of the hiring process may also show discriminatory trends. The consequences of not using valid tests can be very expensive, as Ford found out. But it can also cost companies other ways as well. Marisa Kendall of the Los Angeles Times reported that Palantir, a Silicon Valley company that specializes in big data analysis, agreed to pay $1.7 million to settle a government lawsuit alleging racial discrimination against Asian applicants during the résumé review and telephone interview phases of the hiring process. Palantir maintains it did not discriminate but settled quickly to avoid losing its government contracts, which would have cost the company millions of dollars beyond the settlement.
Steps to Avoid Problems
An employer can do a number of things to protect itself in the use of selection tests. These include:
Just because adverse impact exists does not mean a pre-employment testing tool cannot be used–it means that its use has to be defensible. Having good validation from a trusted test vendor will help greatly with that defense.
International HR Director for OSF Global Services, Andreea is a veteran recruiter who has seen them all. She developed HR recruiting strategies and retention programs that guarantees the success of the company. She is a people person and she handles very easy new relationships with new employees, but her most interesting challenge is to find the middle way between company’s best interests and employee’s needs. To learn more about Andreea contact her on LinkedIn.