Employee Testing Compliance May Test Your Patience


Federal law governs how an employer may test prospective hires and employees. The laws are designed to ensure that employment decisions are based on knowledge, skills, and abilities, rather than membership in a protected group such as race, ethnicity, sex, religion, age, or disability. All of the laws described below apply to employers with 15 or more employees. Except the Age Discrimination in Employment Act, which adds individuals 40 years and older to protected group status. That law only applies to employers with 20 or more employees.

Florida law does not specifically address testing procedures; however, the Florida Commission on Human Relations is empowered by the Florida Civil Rights Act and Title VII to investigate employers with 15 or more employees, and to act upon complaints alleging any discriminatory practice.

Any test that has an adverse impact on a protected group is illegal. Adverse impact occurs when a testing procedure, although applied consistently to all employees, excludes a disproportionate number of individuals from a protected group. Courts typically rely on the 80% rule to determine disproportionality. When groups are equally qualified, and the selection rate for one group is less than 80% of another, there may be an adverse impact. If a testing procedure is challenged in court, the employer will have to prove that the test is job related, and justified by a business necessity. Business necessity involves showing that a test is essential to the safe and efficient operation of the business, and that there is no alternative procedure available that can achieve the business objective with a lesser adverse impact. The job relatedness of a testing procedure is discussed in the next section.

There are Uniform Guidelines for Testing Compliance

The Uniform Guidelines are intended to provide guidance for employers who use testing to make employment decisions. These decisions include the primary reasons employers test employees: hiring, promotions, and transfers. Any testing procedure that has an adverse impact is considered illegal unless the testing procedure is proven to be job related, and is consistent with business necessity.

A job related test must be reliable and valid. A test is reliable if its score consistently measures a characteristic of the employee. For example, a prospective hire may be given 24 hours to develop a website. Such a test may be to gauge creativity in a crunch. A test that yields similar scores for a person who repeats the test is said to reliably measure a characteristic. Validity tells you if the characteristic being measured is related to job requirements. Taking the example of our web designer, the job may require an employee to work with clients to quickly turn over website changes. If a test is a valid predictor of performance on a specific job, you can conclude how the person being measured is likely to perform future jobs. To be compliant with the Uniform Guidelines’ standards, you must maintain appropriate evidence demonstrating the test’s reliability and validity.

If your testing procedure violates the 80% rule, and you don’t have the records to demonstrate validation and/or can’t prove business necessity, the law requires that active steps are taken to either: modify the assessment that causes the adverse impact, exclude the component of your testing procedure that causes the adverse impact, or use an alternative procedure that causes little or no adverse impact.

Title VII Prevents Test Discrimination against Protected Groups

An employer cannot use a test if it discriminates against members of a protected group. Employers have the burden to prove that their tests do not result in discrimination, and courts require the employer to produce compelling evidence to support the tests’ job relatedness and business necessity. Additionally, employers may not adjust scores or standards based on group status in order to avoid an adverse impact. The test must stand on its own merit.

The ADA Provides Specific Testing Guidelines for Persons with Disabilities

The Americans with Disabilities Act guarantees equal opportunity to jobs for qualified individuals with disabilities. A qualified individual is one who can perform the essential functions of a job with or without reasonable accommodation. Factors that courts use to determine whether tasks are essential functions include a written job description, the time spent performing the function, the consequences of not performing the function, and the work experiences of employees who hold the same or a similar job.

Some individuals with disabilities may require reasonable accommodation to participate in employer testing. These may include a change in the job application, testing process, or the environment in which the testing is conducted. Reasonable accommodation must be provided for individuals with a known disability, unless it causes an employer undue hardship. An undue hardship represents a significant difficulty or added expense to the employer. This is typically determined by a number of factors, including: net cost, the nature of the accommodation, the financial resources of the organization, and the number of employees. An accommodation that is possible for a large organization may pose an undue hardship for a smaller one. Employment tests should be given to individuals who have a disability in a format that does not require the use of the impaired skill, unless the skill is job related, and what the test is designed to measure.

Military Personnel are also Protected against Test Discrimination

An additional consideration for an employer is the Uniformed Services Employment and Reemployment Rights Act. This law ensures that employers do not discriminate against uniformed service members when they are deployed or otherwise retained by the military. The law’s implication on testing is that a deployed or retained service member should be given an opportunity to take the same testing administered while they are away for duty, unless it is impossible or unreasonable. If the service member passes the test, the effect of that passage must be retroactive to the date that it would have occurred if they were not away for military service.

Adopt Compliance Minded Test Practices and Avoid Trouble

To ensure compliance with testing laws, it is important to remember that these laws are designed to encourage fair employment opportunity for all prospective hires and employees. If the testing procedure screens out members of a protected group, the employer should take active steps to determine if there is an equally effective alternate that does not have an adverse impact. Employers should periodically survey any test requirement changes, and update tests according to new requirements. Additionally, employers should make sure that testing procedures are not adopted and implemented with little knowledge concerning what the test is designed to measure, and how the test measures it. Finally, maintain records of test validation, modification, and testing results. 

Successful businesses require dedicated and talented employees and managers. Consult your attorneys to ensure the testing procedures you adopt are helping you select the best, and are also compliant with the law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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