Compliance Resources

Employment Testing and Screening Procedures

By John P. Boggs, Esq, a Partner at the law firm Fine Boggs & Perkins LLP

For many people, the prospect of taking tests ranks right up there with public speaking on the scale of things to wish upon our worst enemies. Few of us escaped formal education without having to sharpen our number-two pencils and spend hours filling in the circles of Scantron sheets. And who could forget physical education class, lined up in rows waiting for the "opportunity" to show how many pull-ups, pushups, and sit-ups we could do?

But, increasingly, the use of testing and similar tools are no longer only a feature of academia. Many of today's employers use tests and other selection procedures to screen applicant's for hiring, promotions, or specialized training opportunities. They can be a very effective means of determining which candidates may be the best match for business requirements. For example, cognitive tests can assess reasoning, memory, speed and accuracy that may be critically important in understanding and comprehending job requirements. And physical tests can measure the ability to perform specific motor skill requirements, as well as a candidate's strength and stamina in such activities. Other testing procedures evaluate specific tasks, or even medical or psychological fitness as they may relate to specific positions. Properly applied, such tests and screening procedures can limit or avoid the personnel headaches that plague an employer who may otherwise hire the wrong person for the wrong position.

But like other powerful tools, employment tests and selection procedures must be handled with caution. Improperly designed or implemented testing procedures can be a source of problems for employers. State and federal authorities, including the Equal Employment Opportunity Commission, can be quick to respond to suggestions that a screening method may be suspect. And if an employment test or procedure is found to favor or burden one protected group over another - either by design or in practice, based on the results obtained - then the employer may be targeted with a charge of discrimination.

Title VII of the Civil Rights Act of 1964 (and its California parallel) and the Age Discrimination in Employment Act (ADEA) prohibits discrimination under both disparate treatment and disparate impact theories. Under a Disparate Treatment analysis, the agencies will evaluate whether people of a different race, color, religion, sex, etc., were treated differently. Under a Disparate Impact analysis, the question is whether an otherwise neutral policy or practice nevertheless may disproportionally affect one protected group more than another. In evaluating testing procedures in the employment context, both theories of analysis must be considered.

Avoiding disparate treatment problems in employment testing and screening can be relatively straight forward. All employers should administer tests and other selection procedures to all candidates without regard to race, color, national origin, sex, religion, age, or any other protected classification. For example, if an employer is concerned about physical agility for its service technicians, it would be unlawful disparate treatment to subject only those candidates over the age of 40 to its testing protocol. Similarly, an examination of filing skills or other office procedures should be given to all potential candidates, not simply to those whom a manager may be concerned might not be proficient in such skills. Eliminating disparate impacts from testing and screening procedures can be more difficult. For example, one impact of that physical agility test for service technicians may be that fewer female candidates move on to the next selection step. If statistical evidence shows that a particular screening tool disproportionately weeds out one or more protected groups, then the employer will bear the burden of showing that the testing is both job-related and consistent with business necessity. Both elements can be pitfalls for employers. For example, in one recent enforcement action, an employer was found liable for disparate impact discrimination for a strength test which disproportionately screened out female candidates. There, the court disagreed with the employer's argument that the test was job-related because the test was shown to be more difficult than the physical requirements of the job itself. In another recent case, a test for a position that did not involving reading and comprehension skills was found to exceed business necessity, because a modified procedure (involving accommodation of those with learning disabilities) could still have identified those who could perform the job functions without unfairly screening out those with trouble reading.

Properly designed and applied, testing and screening procedures can be useful tools in providing employers with objective criteria to help predict whether applicants or candidates for promotion may be successful in their desired position. But employers need to take care to handle them appropriately. The EEOC has published a set of best practices to keep in mind in this area, including:

Ensure that all tests and procedures are administered without regard to race, color, national origin, sex, religion, age, disability, etc.
If a test or procedure does screen out a particular group, evaluate whether an equally-effective alternative selection process may be available that has less adverse impact.
Ensure that all tests and procedures are properly validated for the positions and purposes for which they are used. They must be job-related.
Regularly re-evaluate your testing and selection procedures and any changes in job requirements to ensure that what may have been work-related at one point remains relevant.
Take care in introducing any new testing or selection procedures to ensure that they do not expose your organization to potential liability. Managers - from front-line supervisors to department heads - may have the best of intentions, but introduction of testing and selection procedures should be done only after full consideration of all foreseeable consequences.

Those considering introduction of new testing or screening procedures - and those with such procedures already in place - should look carefully at their needs and the options available to them. Consider industry practices, but do not rely exclusively on what others have done and presume that all will be well. All employers are well-advised to seek specific legal counsel on any new or existing testing and screening procedures in use or under consideration.