In one of my first posts, I highlighted an article regarding the legality of personality tests. In it, I noted that the EEOC had held a fact-finding session and was likely going to issue some further guidance. Well, that day has arrived.
The EEOC issued a fact sheet on employment testing today, announced in this press release. The fact sheet, which can be accessed here, contains all sorts of helpful information for employers, including a best practices approach and a primer on the applicable federal laws. Suffice to say that some of the suggestions are fairly obvious, but here they are:
- Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
- Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under [applicable procedures].
- If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
- To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
- Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
As I noted previously, Connecticut does not have any major caselaw on this topic. Moreover, courts here will typically mimic federal law anyways, so it is certainly a good idea to familiarize yourself with the topic and implement the best practices recommended by the EEOC for these types of tests. As the year comes to a close, it’s a good idea anyways to audit your personnel policies and procedures to ensure that they are compliant with current law.