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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.

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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

Polygraph Tests

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.

Integrity and Personality Tests

As employers’ use of polygraph tests have been restricted, they have turned to subjective tests purported to measure honesty or integrity through analysis of answers to numerous questions. They also look at handwriting and other nontraditional forms of employee selection to discover personality information. Although the validity of such tests in discovering useful information is at issue, they have not been shown to produce an adverse impact on any protected group.

Basic intelligence tests are considered too blunt to determine specific employment-related results. Personality tests are allowed, provided they test relevant parts of the applicant’s personality.

Physical ability testing of applicants for very physical jobs are also under close scrutiny. The Americans with Disabilities Act (ADA) requires testing of essential functioning. General tests of fitness—such as the ability to lift 100 pounds—are less likely to be appropriate.

Drug and Alcohol Testing

Businesses lose millions of dollars each year because of employee drug use. Employees who use drugs are less productive, the quality of their work product is suspect, and they can be a danger to themselves and others around them, especially if they are operating machinery, including automobiles. Proponents cite these facts in support of drug testing. Opponents to drug testing cite the Fourth Amendment’s protection from unreasonable searches and seizures. The Fourth Amendment protects an individual’s right to be secure in person, property, and effects.

In most situations, the employer must have a reasonable suspicion that the employee is using drugs. A reasonable suspicion exists when the employer can draw a reasonable inference from the facts and circumstances. The employer must document the circumstances in writing and the sources must be creditable.

The Drug Free Workplace Act of 1988 authorizes drug testing of federal employees and contractors and those employers receiving federal grant money. Provisions of the act include the following:

· the employer must publish in a conspicuous place that drug use is prohibited

· the employer must educate employees on the dangers of drug use and offer counseling and treatment programs

If a criminal conviction arises from a workplace abuse offense, the employer is required to administer an employment sanction or advise and direct the employee to an approved substance abuse treatment program.

The most common type of test is a urine test. It involves mixing urine with chemicals. Its limitations are that it:

· detects legal drugs but does not distinguish among different drugs

· does not show time or quantity of consumption

· can detect only one drug at a time

· is reliable for only one to three days

A more reliable test analyzes hair follicles. Considered less intrusive than the urine test, it is reliable for up to three months and shows time or quantity of consumption.

Employees addicted to and currently using drugs or alcohol are not covered by the ADA. If a worker is in or has completed a rehabilitation program, then the employee is covered.

Medical Testing

Many employers require pre-employment or post-offer medical tests to ensure that the applicant is physically fit for the position. An employer is prohibited from testing before a job offer to protect against discrimination based on disability. All employees within the same job category must be subject to the same medical examination; individual applicants cannot be singled out. And information from the examinations must be kept separate from other personnel-related information.

Tests for HIV and AIDS

These tests are considered inappropriate for two reasons. First, HIV is not transmitted through casual contact, so the legitimate business criterion is hard to meet. Second, testing does not determine the individual’s HIV status at the time of the test. In addition, the ADA prevents any action based on the information acquired.

Occupation Specific Regulations

When the government requires or encourages testing in the private sector, constitutional scrutiny applies. For example, the Department of Transportation requires testing of private-sector transportation employees in safety or security positions.

Ask Yourself

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