Commentary
Module 4: Terms and Conditions of Employment
Topics
Topic 4.1: Testing Topic 4.2: Evaluation and Regulation of Job Performance Topic 4.3: Fair Labor Standards Topic 4.4: The Right to Privacy and Other Protections from Employer Intrusions Topic 4.5: Labor Law Topic 4.6: Occupational Safety and Health Act Topic 4.7: Employee Retirement Income Security Act Topic 4.8: Workers’ Compensation
Pre-employment testing became very popular in the 1950s as a way to increase efficiency in U.S. business. Since then, pre-employment testing has been a regular practice. Employers believe they can increase production and reduce costs by weeding out applicants using various tests. But often the tests used do not actually identify the characteristics sought to be removed from the workplace.
Two Forms of Testing
Eligibility tests help determine if an employee is capable and qualified to perform the requirements of a position. Examples include intelligence tests, physical stamina, eye examinations, achievement and aptitude tests, and tests for personality traits. The purpose of this testing is to find the best individual for the job through achievement and personality indicators.
The problem with eligibility tests is that they may appear facially neutral, but they may have a disparate impact on a protected class. Nonetheless, the 1964 Civil Rights Act (Title VII) allows tests that have an adverse impact if the test has been professionally developed and validated. A validated test is one in which studies have proven that it evaluates what it says it is intended to evaluate. If used properly, a validated test will not only find the best candidate, but also reduce the chance for discriminatory choices based on conscious or subconscious employer bias.
Ineligibility testing, such as drug tests, polygraphs, and HIV testing, are designed to ensure that the individual is free of impairments that limit an applicant’s ability to perform. As technology has improved, tests for addictions have become more efficient, less expensive, and more prevalent.
To protect individual employees’ rights (such as the right to privacy), courts perform a balancing test to determine the legality of ineligibility testing. They weigh the conflicting interests of the employer in securing a problem- or substance-free workplace against the privacy rights of the employee and protections against, for example, self-incrimination.
Legality of Testing
Generally, employees and government contractors receive greater protection than private-sector employees because many of the protections derive from the Constitution (the Fourth Amendment’s unreasonable searches and seizures, Fifth Amendment’s self-incrimination, and the Fifth and Fourteenth Amendments’ due process clauses).
Certain tests have Title VII implications because implementing them has a disparate impact upon 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.
Title VII specifically exempts professionally developed employment tests of eligibility from disparate impact claims, as long as the test is not designed, intended, or used to discriminate.
To be legally valid, an employer must demonstrate that a test is a business necessity and predictive of job performance. For example, a test for intelligence must actually test intelligence and intelligence must be necessary for adequate performance. Note: Even when these two requirements have been satisfied, the test may still be challenged if a less discriminatory alternative exists.
To show business necessity, the employer must demonstrate that the quality measured by the test is a bona fide occupational qualification (BFOQ) necessary to adequate performance in the position. To show the second prong, the employer must show that the test is valid, that it measures what it purports to measure, and measures it accurately.
Test Validity
