Employment Tests and Discriminatory Contests

Contact the experienced employment law attorneys at Maya Murphy, P.C. today at (203) 221-3100 or JMaya@Mayalaw.com

The Equal Employment Opportunity Commission (EEOC), interprets and enforces Title VII’s prohibition of discrimination as forbidding any employment discrimination by employers against employees based upon race, color, gender, religion, sex, age, genetic information, or national origin.

WHEN A TEST VIOLATES ANTI-DISCRIMINATION LAWS

The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job.  However, use of these tools can violate Federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age.  Further, the use of tests and other selection procedures can also violate Federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.  Below are three instances regarding tests that employers instituted which ultimately led to severe discrimination allegations.

EEOC v. Ford Motor Co. and United Automobile Workers of America, involved a court-approved settlement agreement on behalf of a nationwide class of African Americans who were rejected for an apprenticeship program after taking a cognitive test known as the Apprenticeship Training Selection System (ATSS). The ATSS was a written cognitive test that measured verbal, numerical, and spatial reasoning in order to evaluate mechanical aptitude. Although it had been validated in 1991, the Court found that ATSS continued to have a statistically significant disparate impact by excluding African American applicants. Less discriminatory selection procedures were subsequently developed that would have served the employer’s needs, but the employer did not modify its procedures. In the settlement agreement, the employer agreed to replace the ATSS with a selection procedure, to be designed by a jointly-selected industrial psychologist, that would predict job success and reduce adverse impact. Additionally, the employer paid $8.55 million in monetary relief.

In EEOC v. Dial Corp., women were disproportionately rejected for entry-level production jobs because of a strength test. The test had a significant adverse impact on women – prior to the use of the test, 46% of hires were women; after use of the test, only 15% of hires were women. The employer defended the test by noting that is appeared that use of the test had resulted in fewer injuries to hired workers. The EEOC established through expert testimony, however, that the test was considerably more difficult than the job and that the reduction in injuries occurred two years before the test was implemented, most likely due to improved training and better job rotation procedures. On appeal, the Eighth Circuit upheld the trial court’s finding that the employer’s use of the test violated Title VII under the disparate impact theory of discrimination. See www.eeoc.gov/press/11-20-06.html.

The EEOC settled EEOC v. Daimler Chrysler Corp., a case brought on behalf of applicants with learning disabilities who needed reading accommodations during a pre-employment test given for hourly unskilled manufacturing jobs. The resulting settlement agreement provided monetary relief for 12 identified individuals and the opportunity to take the hiring test with the assistance of a reader. The settlement agreement also required that the employer provide a reasonable accommodation on this particular test to each applicant who requested a reader and provided documentation establishing an ADA disability. The accommodation consisted of either a reader for all instructions and all written parts of the test, or an audiotape providing the same information.

HOW TO AVOID VIOLATION

These three cases are just the starting point for employers in their quest to remain EEOC and Title VII compliant in their policies and procedures.  Employers should evaluate the rulings of the above cases and understand the reasoning for the charges brought against the employer so that the employers can avoid placing themselves in the situation, even unintentionally, where they would be liable for discriminatory practices.

If you are an employer and are faced with an employee claim of discrimination under Title VII, or are facing a claim under jurisdiction of the EEOC, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

Source: eeoc.gov