Do you administer make-or-break tests that everyone must pass? If so, make sure you test everyone under similar circumstances. Keep careful records of testing conditions and test results. Make a point of following up with employees who don’t score well.
That way, if someone claims the test was biased, you can at least show it was administered fairly and impartially.
Recent case: Jacqueline, who is black, was a registered nurse at a hospital. At one point during her tenure, the administration decided it should test the skills of all nurses who were responsible for tracking and administering medications.
Affected nurses were told they had three chances to pass and would be terminated if they didn’t achieve a score of at least 90%. Jacqueline failed three times and was fired.
She sued, alleging the test discriminated against black nurses. She also claimed she was forced to take the first test in a room by herself, while white nurses were not.
The hospital first pointed out that only two nurses had lost their jobs for failing the test three times. One was white; Jacqueline was the other. Then it explained that it had separated the nurses during testing to prevent cheating. Jacqueline merely happened to be the one assigned to a private room, while the other test taker sat in an area near a nursing station.
The court tossed out Jacqueline’s case. (Curry v. Kaiser Foundation Hospitals, No. 2:10-CV-2592, ED CA, 2013)