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Beware bias peril built into applicant tests

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in Discrimination and Harassment,Hiring,Human Resources

Do you use off-the-shelf pre-employment tests to screen applicants? Watch out! You could be setting yourself up for years of litigation if a disappointed applicant sues, alleging some form of discrimination.

Reason: Such commercial tests are in the EEOC’s cross hairs, now that it has decided to begin litigating more cases involving allegations of pre-employment discrimination.

Recent case: Vicky, who is hearing and speech impaired, applied to work as a cashier, bagger and stocker at a Kroger grocery store. The company requires all applicants to take a Customer Service Assessment created by a third-party vendor. Vicky scored just 40%, part of the reason Kroger decided not to hire her.

Vicky complained to the EEOC, which took up the case. The commission issued a series of subpoenas requesting information about the test, including any validity studies. The EEOC said it needed the information to see if the test screened out applicants with disabilities, and whether the skills it measured were job-related and consistent with business necessity. A later subpoena requested information on the test’s possible impact on minorities.

The case twice worked its way through the federal court system. Now the 3rd Circuit Court of Appeals has again ruled that the EEOC is entitled to the information. (EEOC v. Kronos, No. 11-2834, 3rd Cir., 2012)

Advice: Before purchasing a pre-employment test or coming up with your own, carefully assess whether it is necessary. Some testing companies make exaggerated claims about what their tests will do. It may not be worth the hassle, especially for positions that are at-will and don’t require advanced skills or education.

Always run any testing program by your attorney. Remember that all skills tests must be job-related and consistent with business necessity. Most so-called personality tests won’t meet that requirement.

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