EEOC “Fact Sheet” Cautions Employers to Be Careful with Employment Tests and Other Screening Criteria

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12.31.2007

Louis B. Meyer III

Susanna Knutson Gibbons

Employers use a variety of employment tests and other screening criteria for job applicants and candidates for promotion or other advancement, including criminal background checks, credit reports, physical examinations, and personality tests to name a few. Recent years have seen an increase in employment testing due to post 9/11 security concerns, the large-scale adoption of online job applications, and concerns about employer liability for workplace violence and unsafe work conditions.

Federal employment discrimination laws, such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, prohibit discriminatory employment testing. Some of these laws also impose restrictions on how to “score” employment tests. With the recent increase in employment testing, the U.S. Equal Employment Opportunity Commission ("EEOC") has seen an increase in the number of discrimination charges based on exclusions resulting from criminal background checks, credit reports and other screening criteria, or raising other issues about employment testing.

For these reasons, the EEOC recently issued a new “fact sheet” that cautions employers to be careful in determining which types of tests and other screening criteria to use and provides guidance on administering them and using the results. You can review this fact sheet on “Employment Tests and Selection Procedures” at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

The fact sheet emphasizes that employers may violate federal anti-discrimination laws not only by using employment tests to discriminate intentionally, but also by using neutral testing procedures that “disproportionately exclude people in a particular group by race, sex, or another covered basis.” As noted in the fact sheet, if an employment test or other selection procedure is shown to have a “disparate impact” on members of a protected class, the employer may rebut the claim by showing that the test or procedure is “job-related and consistent with business necessity.” If the employer meets this requirement, employees may still attempt to establish that a “less discriminatory alternative” is available to the employer for achieving the same objective, such as predicting job performance.

As also explained in the fact sheet, an employment test or other selection procedure may be the subject of an ADA claim if the test or procedure includes unlawful disability-related inquiries, screens out disabled individuals based on standards that are not “job-related and consistent with business necessity,” or is administered in a manner that fails to provide reasonable accommodations to otherwise qualified individuals with disabilities.

The fact sheet includes a list of “best practices” and recommends that employers “ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used.” The fact sheet advises that tests and other screening criteria should not be “adopted casually by managers who know little about these processes,” and that “no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization.” Finally, the fact sheet recommends that employers stay informed about changes in job requirements, update their testing procedures when needed, and make sure each test or selection procedure is appropriate for the job and is properly administered and scored.

This new fact sheet signals an increased focus by the EEOC on discrimination claims based on employment testing. Employers may wish to consult employment counsel to ensure that their company’s employment tests and other screening criteria comply with federal anti-discrimination laws.

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12.31.2007