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New EEOC Fact Sheet Reminds Employers to Vet Screening Criteria Carefully

Employment tests such as cognitive tests, criminal background checks and physical ability tests can often help employers sift through large pools of job applicants and employees seeking promotion. A new fact sheet issued by the U.S. Equal Employment Opportunity Commission ("EEOC") reminds employers to be careful in deciding what tests to use and how to score those tests. While the fact sheet does not stake out new ground, the EEOC's focus on an increase in testing-related discrimination charges should impel employers to ensure that their own procedures comply with federal anti-discrimination laws.

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. As the EEOC's new fact sheet makes clear, 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." This type of disparate impact claim is subject to the same burden shifting as other Title VII claims.

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 makes it over this hurdle, according to the EEOC, 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 vulnerable to 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 manner that fails to provide reasonable accommodations to otherwise qualified individuals with disabilities.

The EEOC fact sheet concludes with 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.

"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," says the EEOC.

Ensuring that your company uses permissible employment tests and selection procedures is a complicated process which must take into account various employment laws. With attorneys experienced in disability management, employment discrimination and affirmative action, Jackson Lewis is well-suited to help you sift through the applicable anti-discrimination statutes so that you can appropriately sift through your applicant pools.

Related Links
EEOC's "Employment Tests and Selection Procedures"