Statement of Carol Miaskoff, EEOC Office of Legal Counsel

Meeting of May 16, 2007 - on Employment Testing and Screening

Good morning, Madame Chair, Madame Vice Chair, Commissioners, and distinguished guests. I am Carol Miaskoff from the Office of Legal Counsel. I will give a short summary of major legal principles relevant to employment testing, to serve as a reference for the presentations that follow.

In Title VII of the Civil Rights Act of 1964, Congress expressly allowed employments tests but only if they were not “designed, intended or used to discriminate because of race, color, religious, sex or national origin.” 42 U.S.C. § 703(h). This statutory provision specifically pertained to “professionally developed ability tests.” Id.

The Supreme Court considered this standard in Griggs v. Duke Power Co., 401 U.S. 424 (1971), which is the seminal Supreme Court case on employment testing. The facts in Griggs involved a workplace with five Operating Departments, ranging from Labor at the bottom to Laboratory and Tests at the top. In 1965, the company abandoned its policy of restricting African Americans to the Labor Department. At the same time, the company made completion of high school a prerequisite to transfer from the Labor Department to another department. Also, as of July 2, 1965 (the day Title VII became effective), the company announced that transfers out of the Labor Department would be allowed only if an individual received satisfactory scores on two professionally prepared aptitude tests. When this case came to the Supreme Court, the Fourth Circuit already had found that whites "register[ed] far better on the Company's alternative requirements" than blacks. The Fourth Circuit, however, had rejected the claim that this made the requirements unlawful. See Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir. 1970), rev'd, 401 U.S. 424 (1971).

In its decision in Griggs, the Supreme Court held that the legality of these “professionally developed tests” turned on whether they were job-related. Noting that “[t]he touchstone is business necessity,” 401 U.S. at 431, the Court also stated that Title VII forbids employers from “giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.” Id. at 436.

The Supreme Court explained its standard further in Albemarle v. Moody, 422 U.S. 405 (1975), which again involved a high school diploma requirement and aptitude tests. Here, the Court explained that aptitude tests used in the employment context must be “predictive of, or significantly correlated with, important elements of work behavior.” 422 U.S. at 431.

Subsequently, in 1978, the EEOC, with the Departments of Labor and Justice, and the agency now known as OPM, adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP.” UGESP was published at a time when lawyers and psychologists were confronting the differences between judicial and scientific approaches to assessing the effects of employment tests. UGESP provided uniform federal government guidelines for establishing when employment tests were not discriminatory.

Beyond Title VII, I would like to mention the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Title I of the ADA specifies when an employer may make disability-related inquiries, or require an applicant or employee to undergo a medical examination. Under the ADA, disability-related inquiries and medical examinations are:

• Prohibited pre-offer;
• Allowed post-offer if all entering employees in the same job category get the same question or test; and
• Regulated during employment.

The ADA specifically addresses employments tests in several ways. It is unlawful under the ADA 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 or administer employment tests 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. § 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. § 12112(b)(5).

Finally, the Age Discrimination in Employment Act, prohibits discrimination based on age (40 and over) with respect to any term, condition, or privilege of employment. This includes selecting applicants or employees for hiring, promotion or for reductions in force. The ADEA also prohibits disparate impact discrimination, unless the challenged employment action is based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005).

This concludes my short tour. You will hear now from EEOC litigators and charging parties who will bring these principles to life.

This page was last modified on May 16, 2007.