Federal Government Reminds Employers to Carefully Vet Screening Criteria
A new fact sheet issued by the U.S. Equal Employment Opportunity Commission ("EEOC") reminds employers to be careful in deciding what tests to use and how to score those tests. Employment tests such as cognitive tests, criminal background checks and physical ability tests help employers sift through large pools of applicants and employees seeking promotion. The fact sheet focuses on an increase in testing-related discrimination charges and impels employers to ensure that their own procedures comply with federal anti-discrimination laws.
Title VII of the Civil Rights Act ("Title VII"), the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA") prohibit discriminatory employment testing. As the EEOC's new fact sheet makes clear, employers can violate federal civil rights laws not only if they use employment tests to discriminate intentionally, but also if they use neutral testing procedures that "disproportionately exclude people by race, sex, or other covered basis."
Testing that has a disparate impact on members of a protected class requires an employer show that the procedure "is job-related and consistent with business necessity." If the employer satisfies this showing, employees can still argue that a "less discriminatory alternative" is available to predict job performance.
The fact sheet highlights that employment tests also may be vulnerable to ADA claims if they include unlawful disability-related inquiries, screen out disabled individuals based on non-job-related standards, or are administered in a manner that fails to provide reasonable accommodations to otherwise qualified individuals with disabilities.
Workplace testing can be an effective management tool, but no test should be implemented without an understanding of its effectiveness and limitations for your organization, its appropriateness for a specific job, and whether it can be appropriately administered. The EEOC prescribes that employers stay informed about changes in job requirements and modify testing procedures accordingly. Employers who rely on tests validated years ago may be violating the law.
Ensuring that your company uses permissible employment tests and selection procedures is a complicated process that must take into account various federal statutory schemes. With attorneys experienced in disability management and employment discrimination, Taylor and Walker is well-suited to help you sift through the applicable anti-discrimination statutes so that you can avoid violating federal law.
Todd Gaynor is an Associate in Taylor & Walker’s Labor and Employment Law practice group. He can be reached at 757-625-7300.
