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Employers use a wide variety of tests to determine whether job applicants can perform the jobs they seek. The tests usually measure the candidates’ knowledge, skills and abilities.

But if tests cover anything other than the employee’s ability to perform the job’s essential functions, employers could find themselves defending the tests in court.

Sources of testing challenges

Several federal and state employment laws address job testing. Courts have held Title VII of the Civil Rights Act to prohibit “practices that are fair in form, but discriminatory in operation.” The act protects employees from discrimination based on their race, color, religion, sex or national origin. Consequently, any test that screens out racial or religious minorities or foreigners, or favors one gender over another, could potentially open employers to litigation.

Similarly, the ADA protects “qualified individuals with disabilities” from discrimination. Employers may not discriminate against a person as long as the individual can perform the job’s essential functions with or without a reasonable accommodation. This policy applies to employment testing as well. Employers must provide reasonable accommodations when testing applicants, and must treat their test results the same as the results of applicants who required no accommodations.

Most challenges to employment testing do not accuse the employer of intentionally discriminating against minorities. Instead, most claims allege the tests disparately impact minorities and the disabled.

To bring a disparate-impact claim, a plaintiff must identify the test or the part of the test responsible for the disparity. Then, the plaintiff must use statistics to show that it caused the disparate impact.

Defending tests

Employers have two options to defend against disparate-impact claims: (1) They can challenge the statistical evidence the plaintiff presented to show that no disparity exists; or (2) they can acknowledge that the disparity exists, but that the tests are “job-related for the position in question and of business necessity.”

If the employer demonstrates the test is job-related and of business necessity, plaintiffs still can challenge the test by showing that a different test would identify qualified candidates without the disparate impact.

How to structure tests

To create employment tests that are job-related and of business necessity, employers must perform a job analysis.

Job analyses catalog employee behaviors, activities and functions, and note the percentage of work time spent on each. A good analysis will also yield a list of the education, skills and abilities necessary to perform the job. Any employment test should measure an applicant’s ability to perform the behaviors and activities of the job and the extent to which each applicant possesses the necessary attributes to successfully perform the job.

Remember that not all job functions are essential job functions. Functions should be classified as essential and nonessential. Employers may not disqualify an applicant because of his or her inability to perform a nonessential job function. Under the ADA, disabled applicants are entitled to reasonable accommodations only to perform essential job functions, but may not be penalized for their inability to perform nonessential functions.

The best employment tests simulate performing actual job functions. Again, test only the applicant’s ability to perform essential functions. Testing the ability to perform nonessential functions only opens the employer to charges of discrimination, and is a waste of resources.

Test the test

Tests are supposed to predict employees’ performances. Employers should constantly measure employee performance and measure test results to see if they accurately predict performance. If not, reexamine the test.

If tests are accurately predicting employees’ performances, but are still screening out large numbers of minority applicants, explore other options. For example, employers could keep the test but lower the passing score to see if more minorities can be hired without affecting work quality.

Employment testing is not a static activity. Employers must re-examine the test on a regular basis to ensure it is doing what it should.  

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