Target Corporation was in the news in August 2015 when they agreed to pay the EEOC $2.8 million to resolve charges that their pre-employment assessments were discriminatory. The EEOC claimed the tests screened out applicants based on race and gender and were not sufficiently job-related and consistent with business necessity. In addition, they found that one of the assessments violated the ADA. If this could happen to a big corporation like Target, could it happen to your business?
When you’re in the hiring process and have narrowed the candidates to three seemingly equally qualified finalist, how do you verify that they all have the skills and abilities you need?
And how do you select the final candidate who will best fit the job and your company?
Many companies today do just what Target Corporation is doing and are using pre-employment tests to assist with this. They can be a great resource when added into the selection process, as long as you understand what tests to use, and how to use them.
There are several types of pre-employment tests that businesses may utilize in their selection process:
- Skills Testing involves sample job tasks, performance tests, and simulations.
- Strength and Physical Exams include testing for physical capacity to perform job requirements
- Cognitive Tests assess reasoning, reading and math skills, and such areas as memory and accuracy
- Personality Tests can include personality traits and the individual’s propensity for certain conduct, such as reliability and honesty
Your approach to pre-employment testing needs to start with your job description and the essential functions of the position. You must start by analyzing the job, the skills and abilities that it requires, and the characteristics that would make someone successful in the position. Once that’s done, you’ll have a better understanding of what testing, if any, could be useful in the selection process.
When it comes to skills testing, cognitive testing, and personality testing, there are two approaches companies take. The first is to utilize commercially marketed validated tests, and the other is to create company-specific tests. Either way, you need to follow the same thought process in order to stay compliant with the governing laws.
Laws that pertain to employee testing include Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The bottom line is that you must ensure that the testing does not discriminate against a protected class.
As you implement your testing, there are several questions that you must ask.
- Are the tests validated for the positions and purposes they are being used for? Even if you purchase commercially sold and validated tests, you must ensure that they apply in your specific case. Don’t assume that every test sold has been professionally validated. Do yourhomework in order to protect your business. If you’ve created a homegrown test, you will have to find methods to validate it yourself.
- Ask yourself the question whether the test is having a disparate impact on any protected group of people. Don’t assume that because a test has been validated that this protects you. Ford Motor Company paid $8.5 million to settle a claim when they continued to use a cognitive test that had a disparate impact on African Americans, even though another selection method was available that was less discriminatory in its impact.
- Question whether the test is really needed for the job (and continuously re-evaluate its necessity, as job requirements change). Are you requiring that candidates lift 100 pounds when the reality is that no one in that job lifts more than 50 pounds? If so, your physical test may very well have a disparate impact on women, leaving your company vulnerable to a discrimination claim. This is exactly what happened to the Dial Corporation, to the tune of a hefty $3.3 settlement. In 2006, a federal appeals court upheld a decision against the company, declaring that their pre-employment strength test was discriminatory against women. This was due to the fact that the test required applicants to lift and carry weights that were heavier than those which were actually handled on the job (thus unfairly favoring men) and that the test was found to not achieve its stated purpose of preventing on the job injuries.
Some employers are interested in using testing to determine employees’ soft skills, personality traits, and future conduct.
Clearly, this is a more gray area than testing hard skills, such as someone’s typing speed or their ability to lift a specific weight. A few words of caution here. First of all, you can never use a lie detector test on an employee or potential employee, with a few exceptions for special businesses, such as alarm and guard services, pharmaceutical distributors, armored car companies, and, of course, the government itself. If you do decide to use a personality test, read through it carefully yourself to be sure it does not delve into areas that intrude on an applicant’s privacy. And, remember, if you use a test that divulges someone’s mental disorder or impairment, you may very well now fall under the ADA and all of the protections and restrictions that it provides. In the Target case, applicants were given an assessment performed by psychologists. The EEOC found that this was a medical examination conducted prior to an offer of employment, which is a violation of the Americans with Disabilities Act. Clearly, this is an area in which to be cautious.
What if the test is needed and it does have a disparate impact on a protected group?
Must it be abandoned? Not necessarily. You have to dig down a bit deeper and explore your goal more carefully. Is it job-related and is it necessary for the safe and efficient performance of the job? If the answer to that is yes, the next question is whether there is another selection procedure that could be substituted which would accomplish the same thing, without having the same negative result. If the answer is no, you’re on solid ground. But if the applicant can show that there is another method, the courts have held it’s in your best interest to listen.
If you decide to test candidates by having them perform a sample task based on the duties of the job for which they’re being considered, it really must be just that: a sample task. This is not the same as a working interview, in which applicants are brought in to work for a period of time to demonstrate their suitability for a position. You are required by law to pay people for working interviews. Here’s a good real world example of a sample task test: An organization I work with was recently seeking someone to perform high-level administrative work. They asked their two final candidates to each spend thirty minutes composing a business letter because creating professional, well-written correspondence was an important element of the job’s duties. This was a perfectly acceptable (and extremely effective) skills test to have applicants perform.
So, where does that leave us?
Review your application and selection process, including the application, interview, and testing involved, to ensure that it is specific to job duties and requirements. Utilize validated selection tools to assess competencies for the job in order to qualify candidates. Ensure that all candidates are given the same testing requirements and that they are administered equally to all. Constantly re-evaluate your methods, as job requirements and duties evolve and change.
We don’t always want to take it on faith that someone can and will perform the job requirements. As they say, the “proof is in the pudding”, and you can save your company’s money by taking a taste of the pudding before you buy a bowlful. As with everything else, you want to be sure that when you take that bite, you don’t end up choking on a lawsuit down the road.