Be wary of employment tests that seem to have a disparate impact on members of a protected class. You must be ready to show the tests are valid and focus on the real skills required to do a job.
Recent case: Before Nestlé made changes to its processes, many of its machine operators were black. Their job was to run, clean and maintain equipment at the plant.
Then the company told the machine operators that their jobs would soon be reclassified as higher-paid mechanic operator positions. The incumbents would have to take a test in order to qualify for the jobs.
When several black employees didn’t pass the test, they sued, alleging that it had a disparate impact on them.
They also claimed the test was not related to the new jobs, which mostly went to workers who aren’t black. In addition, they said it was their job to train the new workers and that the new jobs actually had fewer responsibilities than their old jobs.
The court said their discrimination claim could proceed. Nestlé will have to show that the tests were job-related. (Conley, et al., v. Nestlé USA, No. 09-CV-5996, ND IL, 2011)
Final note: If you use an outside company to test employees, make sure it can demonstrate to you that its tests are reliable, valid and measure skills actually required on the job. It makes sense, for example, to test food service applicants on food safety.
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