The U.S. Equal Employment Opportunity Commission
Employment Tests and Selection Procedures
Employers often use tests and other selection procedures to screen
applicants for hire and employees for promotion. There are many
different types of tests and selection procedures, including cognitive
tests, personality tests, medical examinations, credit checks, and
criminal background checks.
The use of tests and other selection procedures can be a very
effective means of determining which applicants or employees are most
qualified for a particular job. However, use of these tools can violate
the federal anti-discrimination laws if an employer intentionally uses
them to discriminate based on race, color, sex, national origin,
religion, disability, or age (40 or older). Use of tests and other
selection procedures can also violate the federal anti-discrimination
laws if they disproportionately exclude people in a particular group by
race, sex, or another covered basis, unless the employer can justify the
test or procedure under the law.
On May 16, 2007, the EEOC held a public meeting on Employment Testing
and Screening. Witnesses addressed legal issues related to the use of
employment tests and other selection procedures. (To see the testimony
of these witnesses, please see the EEOC’s website at http://eeoc.gov/eeoc/meetings/archive/5-16-07/index.html
This fact sheet provides technical assistance on some common issues
relating to the federal anti-discrimination laws and the use of tests
and other selection procedures in the employment process.
- Title VII of the Civil Rights Act of 1964 (Title VII), the Americans
with Disabilities Act of 1990 (ADA), and the Age Discrimination in
Employment Act of 1967 (ADEA) prohibit the use of discriminatory
employment tests and selection procedures.
- There has been an increase in employment testing due in part to post
9-11 security concerns as well as concerns about workplace violence,
safety, and liability. In addition, the large-scale adoption of online
job applications has motivated employers to seek efficient ways to
screen large numbers of online applicants in a non-subjective way.
- The number of discrimination charges raising issues of employment
testing, and exclusions based on criminal background checks, credit
reports, and other selection procedures, reached a high point in FY 2007
at 304 charges.
Types of Employment Tests and Selection Procedures
Examples of employment tests and other selection procedures, many of which can be administered online, include the following:
- Cognitive tests assess reasoning, memory, perceptual speed and
accuracy, and skills in arithmetic and reading comprehension, as well as
knowledge of a particular function or job;
- Physical ability tests measure the physical ability to perform a
particular task or the strength of specific muscle groups, as well as
strength and stamina in general;
- Sample job tasks (e.g., performance tests, simulations, work
samples, and realistic job previews) assess performance and aptitude on
- Medical inquiries and physical examinations, including psychological tests, assess physical or mental health;
- Personality tests and integrity tests assess the degree to which a
person has certain traits or dispositions (e.g., dependability,
cooperativeness, safety) or aim to predict the likelihood that a person
will engage in certain conduct (e.g., theft, absenteeism);
- Criminal background checks provide information on arrest and conviction history;
- Credit checks provide information on credit and financial history;
- Performance appraisals reflect a supervisor’s assessment of an individual’s performance; and
- English proficiency tests determine English fluency.
Governing EEO Laws
- Title VII of the Civil Rights Act of 1964
- Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.
- With respect to tests in particular, Title VII permits employment tests
as long as they are not “designed, intended or used to discriminate because
of race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(h).
Title VII also imposes restrictions on how to score tests. Employers are
not permitted to (1) adjust the scores of, (2) use different cutoff scores
for, or (3) otherwise alter the results of employment-related tests on
the basis of race, color, religion, sex, or national origin. Id.
- Title VII prohibits both “disparate treatment” and “disparate impact” discrimination.
- In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII. See 29 C.F.R. Part 1607.1
UGESP provided uniform guidance for employers about how to determine
if their tests and selection procedures were lawful for purposes of
Title VII disparate impact theory.
- UGESP outlines three different ways employers can show that their
employment tests and other selection criteria are job-related and
consistent with business necessity. These methods of demonstrating
job-relatedness are called “test validation.” UGESP provides detailed
guidance about each method of test validation.
- Title I of the Americans with Disabilities Act (ADA)
- Title I of the ADA prohibits private employers and state and local
governments from discriminating against qualified individuals with
disabilities on the basis of their disabilities.
- The ADA specifies when an employer may require an applicant or employee to undergo a medical examination, i.e.,
a procedure or test that seeks information about an individual’s
physical or mental impairments or health. The ADA also specifies when
an employer may make “disability-related inquiries,” i.e., inquiries that are likely to elicit information about a disability.
- When hiring, an employer may not ask questions about disability or require medical examinations until after it makes a conditional job offer to the applicant. 42 U.S.C. §12112 (d)(2);
- After making a job offer (but before the person starts working), an
employer may ask disability-related questions and conduct medical
examinations as long as it does so for all individuals entering the same job category. Id. at § 12112(d)(3); and
- With respect to employees, an employer may ask questions about disability or require medical examinations only if doing so is job-related and consistent with business necessity. Thus, for example, an employer could request medical information when it has a reasonable belief, based on objective evidence,
that a particular employee will be unable to perform essential job
functions or will pose a direct threat because of a medical condition,
or when an employer receives a request for a reasonable accommodation and the person’s disability and/or need for accommodation is not obvious. Id. at § 12112(d)(4).
- The ADA also makes it unlawful to:
- Use employment tests that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities
unless the test, as used by the employer, is shown to be job-related
and consistent with business necessity. 42 U.S.C. § 12112(b)(6);
- Fail to select and administer employment tests in the most effective
manner to ensure that test results accurately reflect the skills,
aptitude or whatever other factor that such test purports to measure,
rather than reflecting an applicant’s or employee’s impairment. Id. at § 12112(b)(7); and
- Fail to make reasonable accommodations, including in the
administration of tests, to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant
or employee, unless such accommodation would impose an undue hardship. Id. at § 12112(b)(5).
- The Age Discrimination in Employment Act (ADEA)
- The ADEA prohibits discrimination based on age (40 and over) with
respect to any term, condition, or privilege of employment. Under the
ADEA, covered employers may not select individuals for hiring,
promotion, or reductions in force in a way that unlawfully discriminates
on the basis of age.
- The ADEA prohibits disparate treatment
discrimination, i.e., intentional discrimination based on age. For
example, the ADEA forbids an employer from giving a physical agility
test only to applicants over age 50, based on a belief that they are
less physically able to perform a particular job, but not testing
- The ADEA also prohibits employers from using neutral tests or selection procedures that have a discriminatory impact on persons based on age (40 or older), unless the challenged employment action is based on a reasonable factor other than age. Smith v. City of Jackson,
544 U.S. 228 (2005). Thus, if a test or other selection procedure has a
disparate impact based on age, the employer must show that the test or
device chosen was a reasonable one.
Recent EEOC Litigation and Settlements
A number of recent EEOC enforcement actions illustrating basic EEO principles focus on testing.
- Title VII and Cognitive Tests: Less Discriminatory Alternative for Cognitive Test with Disparate Impact. EEOC v. Ford Motor Co. and United Automobile Workers of America,
involved a court-approved settlement agreement on behalf of a
nationwide class of African Americans who were rejected for an
apprenticeship program after taking a cognitive test known as the
Apprenticeship Training Selection System (ATSS). The ATSS was a written
cognitive test that measured verbal, numerical, and spatial reasoning
in order to evaluate mechanical aptitude. Although it had been
validated in 1991, the ATSS continued to have a statistically
significant disparate impact by excluding African American applicants.
Less discriminatory selection procedures were subsequently developed
that would have served Ford’s needs, but Ford did not modify its
procedures. In the settlement agreement, Ford agreed to replace the
ATSS with a selection procedure, to be designed by a jointly-selected
industrial psychologist, that would predict job success and reduce
adverse impact. Additionally, Ford paid $8.55 million in monetary
- Title VII and Physical Strength Tests: Strength Test Must Be Job-Related and Consistent with Business Necessity If It Disproportionately Excludes Women. In EEOC v. Dial Corp.,
women were disproportionately rejected for entry-level production jobs
because of a strength test. The test had a significant adverse impact
on women – prior to the use of the test, 46% of hires were women; after
use of the test, only 15% of hires were women. Dial defended the test
by noting that it looked like the job and use of the test had resulted
in fewer injuries to hired workers. The EEOC established through expert
testimony, however, that the test was considerably more difficult than
the job and that the reduction in injuries occurred two years before the
test was implemented, most likely due to improved training and better
job rotation procedures. On appeal, the Eighth Circuit upheld the trial
court’s finding that Dial’s use of the test violated Title VII under
the disparate impact theory of discrimination. See http://www.eeoc.gov/press/11-20-06.html
- ADA and Test Accommodation: Employer Must Provide Reasonable Accommodation on Pre-employment Test for Hourly, Unskilled Manufacturing Jobs. The EEOC settled EEOC v. Daimler Chrysler Corp.,
a case brought on behalf of applicants with learning disabilities who
needed reading accommodations during a pre-employment test given for
hourly unskilled manufacturing jobs. The resulting settlement agreement
provided monetary relief for 12 identified individuals and the
opportunity to take the hiring test with the assistance of a reader.
The settlement agreement also required that the employer provide a
reasonable accommodation on this particular test to each applicant who
requested a reader and provided documentation establishing an ADA
disability. The accommodation consisted of either a reader for all
instructions and all written parts of the test, or an audiotape
providing the same information.
Employer Best Practices for Testing and Selection
- Employers should administer tests and other selection procedures
without regard to race, color, national origin, sex, religion, age (40
or older), or disability.
- Employers should ensure that employment tests and other selection
procedures are properly validated for the positions and purposes for
which they are used. The test or selection procedure must be
job-related and its results appropriate for the employer’s purpose.
While a test vendor’s documentation supporting the validity of a test
may be helpful, the employer is still responsible for ensuring that its
tests are valid under UGESP.
- If a selection procedure screens out a protected group, the employer
should determine whether there is an equally effective alternative
selection procedure that has less adverse impact and, if so, adopt the
alternative procedure. For example, if the selection procedure is a
test, the employer should determine whether another test would predict
job performance but not disproportionately exclude the protected group.
- To ensure that a test or selection procedure remains predictive of
success in a job, employers should keep abreast of changes in job
requirements and should update the test specifications or selection
- Employers should ensure that tests and selection procedures are not
adopted casually by managers who know little about these processes. A
test or selection procedure can be an effective management tool, but no
test or selection procedure should be implemented without an
understanding of its effectiveness and limitations for the organization,
its appropriateness for a specific job, and whether it can be
appropriately administered and scored.
- For further background on experiences and challenges encountered by
employers, employees, and job seekers in testing, see the testimony from
the Commission’s meeting on testing, located on the EEOC’s public web
- For general information on discrimination Title VII, the ADA and the ADEA see EEOC’s web site at
1The Departments of Labor and Justice
and the Office of Personnel Management (then called the Civil Service
Commission) issued UGESP along with the EEOC.
This page was last modified on September 23, 2010.
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