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EEOC Issues Guidance on Employment Testing

By Weldon H. Latham and Jennifer K. Scheessele
[February 2008]

In the wake of an increase in discrimination charges arising from the use of employment tests and other selection procedures, the U.S. Equal Employment Opportunity Commission ("EEOC") has issued a fact sheet warning against the pitfalls of some tests. The “Fact Sheet on Employment Tests and Selection Procedures” clarifies obligations under Title VII of the Civil Rights Act of 1964 (“Title VII”) and provides employers with best practices for the use of testing and selection procedures.

Background

While the use of employment tests is a common practice among employers, Title VII prohibits the use of tests that discriminate on the basis of race, color, religion, sex or national origin. In recent years, employment testing has increased in part due to efforts to efficiently screen large numbers of job applicants in the online application era.

The increased reliance on such procedures has resulted in an upswing in discrimination charges filed with the EEOC raising issues of employment testing (i.e., 141 charges in 2006, compared to only 26 in 2003). In recent months, the EEOC has earned favorable results or settlements in several high profile cases focused on employment testing, including enforcement actions against the Dial Corporation and DaimlerChrysler, as well as a $1.6 million settlement with Ford Motor Company.

Best practices for employment testing

It is important to note that the use of employment testing is permissible, so long as the tests are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” Moreover, employers are prohibited from using "neutral" tests that have the effect of disproportionately excluding members from protected class, where such tests are not "job-related and consistent with business necessity." The EEOC Fact Sheet offers best practices to avoid common pitfalls of employment testing, including the following:

• Properly validate tests for positions and purposes for which they are used.
  
• Keep abreast of changes in job requirements and alter screening procedures accordingly.
  
• If a selection procedure screens out protected groups, determine if an equally effective alternative exists that has less of an adverse impact.

In light of this new guidance from the EEOC, employers should review and analyze their testing procedures to ensure that such practices do not inadvertently create a disparate impact based on a protected class.

For further information, please contact:

Weldon H. Latham Washington, D.C. (202) 973-4200 weldonlatham@dwt.com

Jennifer K. Scheessele Washington, D.C. (202) 973-4200 jenniferscheessele@dwt.com

Davis Wright Tremaine has employment and labor lawyers in Alaska, Oregon, Washington state, California and Washington, D.C. We represent many clients nationally. For a specific referral for a DWT employment and labor attorney in your state, please contact an attorney above. Thank you.

This advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2008, Davis Wright Tremaine LLP.

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