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EEOC move may signal more scrutiny of employment tests

WASHINGTON–Claims of discrimination arising from employment tests and selection procedures may increase following the publication earlier this month of a “fact sheet” on the issue by the Equal Employment Opportunity Commission, some attorneys say.

Employment tests can violate federal antidiscrimination laws if employers intentionally use them to discriminate based on factors including race, age and sex, according to the EEOC.

These tests can also violate the law if they disproportionately affect people in a particular group, unless employers can justify the tests or procedures under the law.

According to the EEOC, employment testing accounts for a small but growing number of charges filed by the EEOC, with the number of charges filed in fiscal 2006 standing at 141 compared with 26 in fiscal year 2003.

The types of tests and selection procedures covered by the EEOC’s five-page fact sheet include cognitive tests, personality tests, medical examinations, credit checks and criminal background checks.

The fact sheet discusses the relevant laws involved, which include Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act. It also discusses recent EEOC litigation and settlements and employer best practices for testing and selection.

Employment testing has increased in recent years in large part due to security concerns since the Sept. 11, 2001, terrorist attacks and issues related to workplace violence, safety and liability, according to an EEOC statement. “In addition, the large-scale adoption of online job applications has motivated employers to seek efficient ways to screen big applicant pools in a nonsubjective way,” the EEOC said.

“Employers usually think in terms of intentional discrimination,” said Francis P. Alvarez, an employer attorney with Jackson Lewis L.L.P. in White Plains, N.Y. “They’re pretty comfortable understanding they can’t adopt policies or practices that intentionally discriminate against applicants or employees on the basis of race, religion, disability, age and gender.

“But these rules implicate practices that may be very well-intentioned, and therefore employers are often caught off guard by them” when they are found to have a disparate impact on particular groups, said Mr. Alvarez (see story, page 20).

EEOC legal counsel Reed Russell said “The EEOC has been looking at this issue for some time” and wanted to get out a document that points out “the right direction on some best practices and…maybe help clarify the thinking of some employers and employees.”

The fact sheet, which follows a May 16 public hearing on the issue, clarifies existing law rather than expands it, say observers.

“It is useful in the sense that they have summarized and laid out existing, basic legal principles associated with testing, but I don’t see they’ve broken any new ground or given any additional guidance,” said Fred W. Alvarez, an employer attorney with Wilson Sonsini Goodrich & Rosati P.C. in Palo Alto, Calif.

Some attorneys say the publication of the fact sheet signals intensified EEOC interest in the area, and that it is likely to lead to increased litigation.

Adam T. Klein, a plaintiff attorney with Outten & Golden L.L.P. in New York, said the fact sheet offers “a road map to employers on what the EEOC is looking at, and I would be sure that this will be the focus of additional litigation by the EEOC and by private counsel.”

John F. Lomax Jr., an employer attorney with Greenberg Traurig L.L.P. in Phoenix, said it is a fair assessment that because the EEOC has noticed a trend in this area “and devoted some time to promulgating this, they’re going to look more closely for charges that involve employment testing or selection procedures, and it may signal a willingness or desire on the agency’s part to initiate more enforcement actions in this area.”

“But it’s also a signal to employers that you may need to be reminded of what the standards have been for employment testing and selection procedures for a number of years,” Mr. Lomax said.

However, Cyrus Mehri, an attorney with Mehri & Skalet P.L.L.C. in Washington, said, “I can’t really say there would be more litigation because if anything, it’s a somewhat dormant area, and there’s not a lot of evidence to say there’s been a big change in that.”

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