Discrimination Ruling Puts Employers to the Test

Dallas partner Billy Hammel talked to Human Resource Executive on how to structure testing in the hiring process to avoid litigation.

Discrimination Ruling Puts Employers to the Test

Billy Hammel, a partner in Constangy, Brooks and Smith's Dallas office, says examples of pre-employment testing include performance and aptitude testing, physical testing, repetitive injury testing, personality testing, medical examinations, credit checks and criminal background checks.

"While a third-party testing vendor's own internal documentation supporting the validity of a test may be helpful, an employer is still responsible for ensuring that such tests are non-discriminatory and job-related," he says. "Even more significant, because pre-employment testing typically involves large numbers of applicants, the resulting lawsuits are usually filed as class actions."

To avoid litigation and potential costly fines, employers should:

*Ensure that pre-employment testing examines only those skills needed to perform the essential job functions of the specific position sought.Consequently, companies should further make sure that its job descriptions accurately reflect the essential job functions of each position.

*Determine if there are any alternative testing options available that would not adversely impact minority applicants.

*Update its pre-employment procedures when company jobs or job descriptions change.

*Examine its historical hiring statistics to self-audit, monitor and address potential adverse impact concerns early.

*Have current employees take the proposed pre-employment test before its implementation to see whether the test produces adverse impact and accurately predicts job performance.

*Store applicant testing data so it can be easily retrieved forEEOCreporting orOffice of Federal Contract Compliance Programs audits (remember, though, that all such information must be kept strictly confidential and may be covered by HIPAA).

*Administer pre-employment testing as late in the application process as possible, preferably after an offer of employment conditioned upon the results of the pre-employment test.

"Due to the multi-year enforcement initiative by the OFCCP and the EEOC, employers who do not take steps to reduce adverse impacts of pre-employment testing will find that any operational or labor savings will be wasted by resulting litigation and compliance costs," Hammel says. "In short, employers should keep the focus on the job. They must know their job requirements and examine only those skills absolutely necessary for the job."