Employment Law Blog

News, trends and analysis in employment law and HR

Jul 10, 2017

Q&A: Should we use employment tests to help us identify the best candidates?

Q&AHarassment & DiscriminationHiring 

Question: My company is hiring, and a testing company tells us that it can help us identify the best candidate for the job. What do you think?

Answer: Tests can be useful in identifying top job candidates, but it’s important to be thoughtful about how you incorporate testing into your hiring processes. Of course, it makes sense to select the most qualified candidate. However, you must ensure that your testing avoids a discriminatory adverse impact on the basis of a protected status such as race/ethnicity, gender, age, disability, etc.

 
Tips for Avoiding Employment Discrimination in Tests
Best Practices for Using Pre-Employment Tests 
  • Candidates should be tested only for the skills needed on the job. For example, it wouldn’t make sense to test for basic accounting knowledge and math proficiency when hiring production line workers, but it would make sense when hiring accounting clerks.
  • These tests must be used uniformly for everyone who applies for the job, and never in a way that intentionally or unintentionally favors certain candidates or discriminates against other candidates.
  • These tests also must be properly validated, meaning they must accurately test for the specified skill(s) in an unbiased manner.
Age Discrimination: A Word of Caution

Recently a federal judge agreed that a city employee with 27 years of experience deserved to have his age discrimination case heard in court, when his employer rejected him for a promotion to an inspector position because he scored slightly lower than the successful candidate (a much younger man) on three tests the employer created. The tests were used only for this single opening. Two of the tests measured skills using Microsoft Word and Excel, but the job posting didn’t mention proficiency in those programs as a requirement. Also, the two other long-term inspectors stated that strong skills in Word and Excel weren’t necessary to be successful on the job. As a result, the judge said the employer’s use of these tests raised enough questions to warrant a trial (Simonis v. City of Fort Wayne, ND Ind, May 2017).

Audit Your Practices, Refresh Your Knowledge 

For more information about avoiding employment discrimination in tests, see the Equal Employment Opportunity Commission (EEOC)’s fact sheet about employment tests. Federal contractors should be aware that the Office of Federal Contract Compliance Programs (OFCCP) has issued a directive to its compliance officers on how to review tests as selection tools during an affirmative action audit. Both agencies rely on the Uniform Guidelines on Employee Selection Procedures, joint guidance issued by the EEOC, OFCCP, and the U.S. Department of Justice (DOJ) in 1978, and still relied upon today. If a test has an adverse impact, the employer has the burden of showing that the test is job-related and consistent with business necessity.

For any additional questions about the use of employment tests and how to avoid employment discrimination, reach out to your Vigilant employment attorney.

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