Testing

Chapter Objective:

The purpose of this chapter is to identify for students the different types of employment testing, their purposes, their strengths and weaknesses and the means by which each type of testing may be regulated. The relevance of testing to cases of disparate treatment and disparate impact are also addressed.

Scenarios - Points for discussion

Scenario One: Depending on the type of store involved in these types of issues, in most cases the Federal Employee Polygraph Protection Act applies to protect employees from the harmful effects of polygraphs, which are renowned to have a large number of false negatives and false positives (does not apply to public sector employees). The act would apply to a food store. Employers are not allowed to require or to request a polygraph test of an employee. However, an employee may voluntarily suggest and submit to the exam in order to further support a claim of innocence.

A private employer may only test if four conditions exist: First, the test must be administered in connection with a workplace theft or incident investigation. Second, the employee must have had reasonable access to the missing property or loss incurred. Third, the employer must have reasonable suspicion that this particular employee was involved. Fourth, the employee must have been given written information regarding the basis for the investigation and for the suspicion that she or he is involved. This is called the Investigation Exemption.

Accordingly, Shefali may only test those individual employees who had access to the funds missing; she may only test those employees for whom she has a reasonable suspicion; and she must give the tested employee written information regarding that suspicion.

Scenario Two: The purpose of this question is to discuss the validity of this type of test. This test would be considered under the question of content validity. Review that section with the students then return to this question.

Scenarion Three: The Drug free Workplace Act applies only to Federal employees. Under the Act, employers are allowed to conduct pre-employment screening for drug and alcohol use and abuse as part of a rehabilitation program. Employee assistance programs are also encouraged. Testing however will be subject to 4th Amendment controls; i.e. the testing may not constitute an unreasonable search or seizure. In order to maintain reasonableness, the employer must distribute a policy statement explaining its stand against drug use. See National Treasury Workers v. Von Raab.

Private sector drug testing is not restricted except by common law invasion of privacy concerns and some state law.

LECTURE NOTES

  1. Background

Pre-employment testing can help locate ideal employees, but may also land the employer in court. Managing the risk created by use of pre-employment tests requires an understanding of the types of pre-employment tests used, the benefits they offer, and their possible costs, beyond the monetary expenditures involved in testing. Given the incidents of resume fraud (a recent survey by Colorado-based Avert, Inc. of 2.6 million job applications revealed that 44 percent of the resumes contained lies) [fn. See Jeffrey Kluger, “Pumping Up Your Past,” Time, June 10, 2002, p. 41].

A.Pre-employment testing began in the 1950s as a response to the inefficiencies that were purportedly present in American business. Since that time, pre-employment testing has been considered a necessity to the selection process.

B.Employers Believed that they would be more competitive if they could test applicants in order to "weed out" those who failed the tests. On the other hand, many of these tests were not validated and did not actually test for the characteristic sought to be removed from the work place.

C.Testing in the work place has taken two forms:

1.Tests for the purpose of finding the best individual for a position.

a.Such as achievement tests and personality indicators.

b.The problems with this type of eligibility test is that while it may appear facially neutral, it may have a disparate impact upon a protected class.

c.Pursuant to the Civil Rights Act of 1964, where adverse impact has been shown, the test may still be used if it has been professionally developed and validated (discussed below).

d.If used properly however, a validated test will not only determine for the employer the most appropriate applicant for the position, but may also reduce the chance for discriminatory choices based on conscious or subconscious employer bias.

2.Tests to ensure that the individual is free of difficulties.

a.Such as tests for drug and alcohol abuse, and other impairments which may limit an applicant's ability to perform.

b.The problem of addiction has permeated almost every facet of our lives, including the work place. As technology has improved, impairment tests have become more efficient, less expensive, and therefore more prevalent.

3.In an effort to protect individual employee rights, courts do a balancing test in order to determine the legality of ineligibility testing.

  1. At some point, an individual’s privacy interests trumpet an employer’s efficiency concerns. That point is when the invasion of privacy is a substantially and highly offensive to the reasonable person.
  1. The courts weigh the conflicting interest of the employer in securing a problem- or substance-free work place against the privacy rights of the employee and protections against self-incrimination.
  1. As many of the protections afforded to the employee derive from the Constitution (Fourth Amendment protection against unreasonable searches and seizures, Fifth Amendment right against self-incrimination, and Fifth and Fourteenth Amendments protections of due process), generally government employees and contractors receive greater protection in these areas than do employees in the private sector.

1)State constitutions can be a source of protection as well.

Case Example:

NormanBloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998)

Issue: Whether a clerical or administrative worker who undergoes a general employee health examination may, without his knowledge, be tested for highly private and sensitive medical and genetic information such as syphilis, sickle cell trait, and pregnancy.

Facts: Employees of a research facility operated by Lawrence Berkeley Laboratory (LBL) brought an action against the facility alleging noncensensual testing for sensitive medical information pursuant to general employee health examinations in violation of Title VII, ADA, and the right to privacy guaranteed by the United States Constitution. The employees claim that the defendant tested, without their knowledge, blood and urine for intimate medical conditions, namely, syphilis, sickle cell trait, and pregnancy during the course of their mandatory employment entrance exam. They also claim that only black employees were tested for sickle cell trait and assert the obvious fact that only female employees were tested for pregnancy. They contend that they did not discover that the disputed tests had been conducted until approximately January 1995, and deny that they observed any signs indicating that such tests would be performed. LBL is a research facility jointly operated by state and federal agencies. LBL claims that the plaintiffs were informed of the tests conducted and moved for a motion to dismiss and summary judgment. The district court granted these motions and the plaintiffs appealed.

Decision: Because material and disputed issues of fact exist with respect to whether reasonable persons in plaintiffs' position would have had reason to know that the tests were being performed, and because the tests were a separate and more invasive intrusion into their privacy than the aspects of the examination to which they did consent, the district court erred in granting summary judgment on statute of limitations grounds with respect to the Title VII claims and the federal and state constitutional privacy claims. The district court also erred in dismissing the federal and state constitutional privacy claims and the Title VII claims on the merits. The district court's dismissal of the ADA claims was proper.

Case Questions

1.The court did not decided the final issues but only remanded it back to the trial court. If you were the judge, based on the facts presented, how would you decided the case?

Class discussion

2.Would it make a difference if the plaintiffs consented to the testing?

If the plaintiffs consented, they could not argue their right of privacy was violated, as they were aware that the results would be given to the employer. However, their Title VII claim could still be viable.

3.Do you think the fact that these tests were not being conducted after 1995 had any affect on the court's decision? Why or why not? Should it?

If a defendant takes preventative measures, their actions may be considered in actions against them for the wrongful acts.

LECTURE NOTES

II.Legality of Eligibility Testing

A.Eligibility testing comprises those tests which an employer administers in order to ensure that the potential employee is capable and qualified to perform the requirements of the position.

1.These tests may include intelligence tests, tests of physical stamina, and eye exams, and basically test for levels or achievement or aptitude, and/or the presence of certain personality traits.

2.Tests for ineligibility, on the other hand, test for disqualifying factors, such as drug and alcohol tests, polygraphs and HIV testing.

Lecture Note: Ask students what types of tests they may have been subject to in the course of their employment histories? Do they think of the traditional lunch date during an interview as a test? For what positions might this more likely be considered a test than others? Are these tests to which your students are subject more eligibility tests or ineligibility tests?

B.Title VII Implications: Certain tests may in their implementation have a disparate impact upon members of a protected class. For example, an employer's test for English language competency would have an adverse impact on individuals of non-English speaking origin. Where discrimination on the basis of national origin has been shown, the employer may continue to use the test only where it can establish that the requirement is a bone fide occupational qualification.

1.Title VII specifically exempts professionally developed employment tests of eligibility from disparate impact claims of discrimination, as long as the test is not designed, intended or used to discriminate on the basis of membership in a protected class.

2.Therefore, if a test has been validated according to strict validation standards, Title VII does not prohibit its use, even where disparate impact is present.

3.In order for an eligibility test to be legally validated as an effective gauge of performance, an employer must show that the test is a business necessity, as well as predictive of job performance.

In other words, a test for intelligence must actually test intelligence, and intelligence but be necessary for adequate performance of the job in question.

4.Moreover, even where these two requirements have been satisfied, the test may still be challenged if there exists a less discriminatory alternative.

5.In order to satisfy the first requirement that the test is a business necessity, the employer must show that the quality which is measured by the test is a bona fide occupational qualification necessary to adequate performance in the position.

6.In order to satisfy the second requirement that the test examines that which it purports to examine, the employer must show that the test is valid, that it measures what it purports to measure and measures it accurately.

  1. A job applicant or employee can show adverse affects by different methods but the most common approach is the “applicants-statistics” approach. The approach compares the percentage of minority applicants successfully passing a personality or aptitude test to the percentage of majority of applicants.

C.Test Validity

Uniform Guidelines on Employee Selection Procedures

1.Where a selection test has been shown to have an adverse impact on a protected class the Guidelines direct that the test be validated.

2.The Guidelines identify different forms of test validation; the choice of validation strategy depends upon the type of inference the use wishes to draw from the test scores.

  1. The guidelines define an adverse impact on a protected class as any procedure which has a selection rate for any one group of less than 80% of the selection rate of the group with the highest rate (i.e. the "Four-Fifths Rule").

a.Criterion Related Validation. The most traditional type of validating a test is criterion related/empirical statistical validity. The test must be shown to accurately predict job performance as evidenced by the ability to do the job.

1)This form of validation collects data relating to job performance from a simulated exercise, then creates statistical relationships between measures of job performance and test scores.

2)The "criterion" is the performance score that one receives which says how well you did during the simulation.

3)The guidelines explain that the criterion on which the test is based may include measures other than work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure.

4)Whatever criteria are used, they must represent major or critical work behaviors as revealed by careful job analyses.

5)In connection with criterion-based validation, it is important that the employer identify the proper criteria to be measured, identify the proper measurement, and establish a significant level of correlation between criterion measurement and job performance.

b.Content Validation. A test which has content validity is one which specifically tests for those skills required by the specific position.

1)To be content valid, a test measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product.

2)The closer the content and context of the test are to work samples or behaviors, the stronger the basis for content validity. The less the test resembles the work situation, the less likely the test is to be considered valid.

3)Contrary to criterion validity which attempts to predict performance, a test which is content valid specifically measures performance of certain position requirements.

c.Construct Validation. This form considers the psychological make-up of the applicant and compares it to those traits necessary for adequate job performance.

1)Specific traits necessary for each position are identified through in depth research and analysis. One such trait may be the ability to work well as a team member.

2)Forms of construct valid tests may include personality or behavior examinations.

3)The main issue in connection with construct validity is not whether the test measures a specific construct, but instead whether that construct is predictive of or important to job performance.

  1. Subgroup Norming. The practice of adjusting testing to make scores equivalent across subgroup populations.

1)Traditionally, the EEOC has required that a test must not only be valid for the overall population to be tested, but also must be valid for each separate minority subgroup. In the past, this goal was achieved through subgroup norming or “race norming.”

2)The Civil Rights Act of 1991 added an additional provision to Title VII which prohibits employers from adjusting or altering test scores on the basis of membership in a protected class, and from using different cutoff scores on tests on that basis. Therefore, race "norming" that allows for (or required) the use of different standards and measurements on the basis of race, gender, religion, or national origin is no longer legal, and the portion of the Guidelines which permitted employers to use different cutoff scores for certain minorities is now invalid.

3)The Uniform Guidelines on Employee Selection Procedures also require that, where there is evidence of an adverse impact, employers of 100 or more employees must maintain specific records in order to ascertain the validity of tests and their impact on various populations. * See Box 14-3

d.Job-related Requirement. In addition to test validation, an employer must show that the specific trait for which the applicant is being tested is a bona fide occupational qualification.

Case Example:

Griggs v. Duke Power Co., 401 U.S. 424 (1971)

Issue: Whether Duke Power's requirement of a certain level of education was sufficiently related to job performance to sustain a finding of its disparate impact?

Facts: Duke Power Company required that its employees either have a high school diploma or pass an intelligence test in order to continue employment or to transfer positions at the company. Section 703(h) of Title VII allows the use of a professionally developed ability test, as long as the test is not designed, intended or used to discriminate. This requirement, however, operated to exclude African American workers from positions at Duke Power. The court found that if an employment practice that has a disparate impact on a protected class cannot be shown to be related to job performance, that practice is prohibited, notwithstanding the employer's lack of discriminatory intent.

Decision: The court evaluated the objective of Congress in the enactment of Title VII and found that it was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. What is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. The court found that neither the high school completion requirement nor the general intelligence test was shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job performance ability. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used.