When a selection test has been demonstrated to have an adverse impact on a protected class, the test must be validated. The choice of validation strategy depends on the type of inference the user wishes to draw from the test scores.
Criterion-related validation uses a simulation exercise to predict performance. It must be shown to accurately predict job performance as evidenced by the ability to do the job.
Content validation tests for those skills actually required by the specific position. The closer the test exercise to the actual job, the more valid the test.
Construct validation considers the psychological makeup of the applicant and compares it to those traits necessary for adequate job performance.
The test must measure for a job-related requirement. An employer must show that the specific trait tested for is a BFOQ. It must also be viewed in the context of the company’s operation and history of the testing program.
Legality for Testing for Ineligibility
An employer may want to test for ineligibility to:
· improve safety, such as through drug testing, which has been shown to reduce workplace injuries, thereby improving production and minimizing workers’ compensation costs
· reduce costs resulting from drug abuse, theft, and personality conflicts
· improve productivity through reduced absenteeism and a more efficient workforce
Employee Legal Claims Against Testing
Many states put requirements on testing, such as a reasonable suspicion of theft or drug abuse. There is also a common law invasion of privacy and reckless or even negligent infliction of emotional distress if the employer’s conduct is outrageous. In determining the reasonableness of the employer’s conduct, the courts balance the employer’s reason for the test against the extent of its intrusion on the employee.
Other claims include wrongful discharge based on a public policy and defamation. Two exceptions to the defense of wrongful discharge are that the employer has a reasonable good faith suspicion of an employee’s drug use and that the employee’s job responsibility involves public safety. Defamation requires intentional injury resulting from publication of false statements about another.
Many courts hold, however, that in the private sector (where there is no employment contract) employers have every right to test employees. If the employees don’t like it they can leave.
Forms of Testing
With accuracy rates between 50 and 90 percent, polygraph tests have little, if any value. The Federal Employee Polygraph Protection Act of 1988 ended the use of polygraphs in selection and greatly restricts its use in other situations. The employer may not:
· directly or indirectly indicate a test measuring honesty can be administered
· use, accept, refer to, or inquire about the results of a test
· discharge, discipline, or discriminate against an employee who refuses to take or who fails a polygraph test
Exempted employers include those that provide security or protect nuclear facilities; ship or store toxic substances; or protect public transportation, negotiable instrument, and the like.
A private employer may have an investigation exemption to test current employees if:
· the test administered is in connection with workplace theft or incident investigation.
· the employee had reasonable access to the missing property or loss incurred.
· the employer had reasonable suspicion that this employee was involved. Suspicion is defined as observable, articulable basis in fact indicating employee.
· the employee is given written information about the basis for the investigation.
Generally, the employee cannot waive protection of the act.