The EEOC enforces three laws that prohibit discrimination in hiring for various protected groups: (1) Title VII of the Civil Rights Act (e.g., race, sex, religion or national origin), (2) the Age Discrimination in Employment Act (ADEA) and (3) the Americans with Disabilities Act (ADA).
In December, the EEOC issued new guidance on employment tests and selection procedures under those three laws.
The initiative was in response to two trends: Employers have increased pre-hire testing in the wake of post-9/11 security concerns, and employers are using technology to more efficiently screen large pools of applicants.
The guidance addresses employment tests, including: cognitive tests (e.g., reading, math, etc.); physical tests that measure strength or stamina; sample job tasks; medical inquiries; psychological tests; personality tests; criminal background and credit checks; ; and English proficiency tests.
How to comply
The key to complying is to make sure each employment test is directly job-related and focuses on business necessity.
Title VII specifically prohibits tests that are “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” The ADEA and the ADA have similar provisions barring tests that screen out older or disabled workers.
Race, sex, religion, national origin
Title VII prohibits both disparate treatment and disparate impact discrimination.
Disparate treatment discrimination occurs when employers treat one group differently than another. For example, when a male manager hands out higher pay and perks to his male employees but not females.
Disparate impact discrimination occurs when an employer adopts a policy that appears to treat everyone equally, but impacts a protected group differently. A common example: physical strength or lifting tests, in which women likely don’t do as well.
Employers can justify such tests as long as they meet the “job-related and of business necessity” standard.
For example, if the job requires employees to lift 80 pounds as part of the essential functions, then the test is legitimate. If lifting is a nonessential job function, the test would not be appropriate and possibly discriminatory.
Another example: Credit checks and criminal background checks can affect minority groups disparately. An employer should use credit checks only when a job involves fiduciary responsibilities as part of its essential functions. Similarly, with criminal checks, if the crime is not relevant to the current job, you shouldn’t reject the applicant based on the crime.
Even if the employer proves that a test is “job-related and of business necessity,” employees can challenge the test by showing there is a less discriminatory alternative available.
Advice: If you see protected groups consistently performing poorly on certain tests, look for alternatives that can test the same ability without discriminating.
Age discrimination issues
The ADEA prohibits employers from discriminating against workers who are 40 or older. The U.S. Supreme Court ruled in 2005 that employees can file disparate impact lawsuits under the ADEA.
In ADEA disparate-impact cases relating to pre-hire tests, an employer can defend itself by showing that the test was based on a “reasonable factor other than age.”
For example, a physical endurance test based on the employee’s need to work long hours under difficult conditions may impact older workers disparately, but would be legitimate as long as it meets the “job-related and of business necessity” standard.
Testing the disabled
The ADA requires employers to provide certain disabled people with reasonable accommodations to perform a job’s essential functions. That also applies to any employment test.
In most cases, the accommodation would be one that would be used on the job as well. For example, an applicant who has difficulty seeing in low light could request additional lighting for a reading comprehension test.
Key point: The ADA severely limits an employer’s ability to perform medical tests prior to making a conditional job offer. Even so, employers can only require such tests if they do so for all job applicants in that category. An employer can’t test or ask questions that are likely to reveal a disability.
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