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Equal Employment Opportunity Commission Employment Tests and Selection Procedures Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion.
There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks. The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job.
However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age 40 or older. Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.
Witnesses addressed legal issues related to the use of employment tests and other selection procedures. This fact sheet provides technical assistance on some common issues relating to the federal anti-discrimination laws and the use of tests and other selection procedures in the employment process.
There has been an increase in employment testing due in part to post security concerns as well as concerns about workplace violence, safety, and liability.
In addition, the large-scale adoption of online job applications has motivated employers to seek efficient ways to screen large numbers of online applicants in a non-subjective way. The number of discrimination charges raising issues of employment testing, and exclusions based on criminal background checks, credit reports, and other selection procedures, reached a high point in FY at charges.
Types of Employment Tests and Selection Procedures Examples of employment tests and other selection procedures, many of which can be administered online, include the following: Cognitive tests assess reasoning, memory, perceptual speed and accuracy, and skills in arithmetic and reading comprehension, as well as knowledge of a particular function or job; Physical ability tests measure the physical ability to perform a particular task or the strength of specific muscle groups, as well as strength and stamina in general; Sample job tasks e.
Title VII also imposes restrictions on how to score tests. Employers are not permitted to 1 adjust the scores of, 2 use different cutoff scores for, or 3 otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin.
Title VII prohibits intentional discrimination based on race, color, religion, sex, or national origin. For example, Title VII forbids a covered employer from testing the reading ability of African American applicants or employees but not testing the reading ability of their white counterparts.
Disparate treatment cases typically involve the following issues: Were people of a different race, color, religion, sex, or national origin treated differently? Is there any evidence of bias, such as discriminatory statements? Disparate impact cases typically involve the following issues: Does the employer use a particular employment practice that has a disparate impact on the basis of race, color, religion, sex, or national origin?
For example, if an employer requires that all applicants pass a physical agility test, does the test disproportionately screen out women?
Determining whether a test or other selection procedure has a disparate impact on a particular group ordinarily requires a statistical analysis.
If the selection procedure has a disparate impact based on race, color, religion, sex, or national origin, can the employer show that the selection procedure is job-related and consistent with business necessity?
An employer can meet this standard by showing that it is necessary to the safe and efficient performance of the job. The challenged policy or practice should therefore be associated with the skills needed to perform the job successfully. If the employer shows that the selection procedure is job-related and consistent with business necessity, can the person challenging the selection procedure demonstrate that there is a less discriminatory alternative available?
For example, is another test available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group?
This method of analysis is consistent with the seminal Supreme Court decision about disparate impact discrimination, Griggs v. UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity.
Title I of the Americans with Disabilities Act ADA Title I of the ADA prohibits private employers and state and local governments from discriminating against qualified individuals with disabilities on the basis of their disabilities.
The ADA specifies when an employer may require an applicant or employee to undergo a medical examination, i. When hiring, an employer may not ask questions about disability or require medical examinations until after it makes a conditional job offer to the applicant.
The ADA also makes it unlawful to: Use employment tests that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the test, as used by the employer, is shown to be job-related and consistent with business necessity.
Under the ADEA, covered employers may not select individuals for hiring, promotion, or reductions in force in a way that unlawfully discriminates on the basis of age. The ADEA prohibits disparate treatment discrimination, i. For example, the ADEA forbids an employer from giving a physical agility test only to applicants over age 50, based on a belief that they are less physically able to perform a particular job, but not testing younger applicants.
The ADEA also prohibits employers from using neutral tests or selection procedures that have a discriminatory impact on persons based on age 40 or olderunless the challenged employment action is based on a reasonable factor other than age. City of Jackson, U. Thus, if a test or other selection procedure has a disparate impact based on age, the employer must show that the test or device chosen was a reasonable one.
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