Testing of applicants for employment or testing of employees for advancement is one of the most common employment practices in the workplace. As common as it is, however, it can be subject to intense legal scrutiny in some instances.
Most employers use some form of an employee test to hire workers, even if it is just a rudimentary interview. From a legal perspective, any process used to decide whom to hire from a pool of candidates is a test. Some are just more formal than others.
Employers may think that the only problem with tests is that they might not effectively separate the wheat from the chaff, so to speak, in the applicant pool. The more serious question, especially for larger employers, is whether the tests being used have the effect of screening out applicants in “protected classes.” This includes racial and ethnic minorities, females in non-traditional roles, persons with disabilities, and others. Such an effect is a form of discrimination that is prohibited by federal and state laws.
Target Corporation recently agreed to pay $2.8 million in a settlement with the Equal Employment Opportunity Commission over employment assessments. The tests were considered by the EEOC to not be sufficiently job-related and to have disproportionately excluded applicants from the hiring pool based on race, gender, and disability.
Theoretically, employment tests should be validated by experts to document that the tests do not have the effect of discriminating against protected classes. Indeed, the EEOC has a set of Uniform Guidelines for Employee Selection Procedures for employers to follow, but they are often not consulted until there is trouble. The Guidelines require test validation only when there is an appearance that a test has a discriminatory effect. As part of its settlement, Target agreed to perform validity studies for tests it plans to use in the future.
Applicants for employment or employees who are denied jobs or opportunity for advancement because of a testing issue can make a complaint to the EEOC or the California Department of Fair Employment and Housing. Applicants should also seek an attorney’s advice. Contact us today to speak with a professional discrimination lawyer in Chico.
Sacramento, CA 95821