Statement of Jeffrey Stern, Senior Trial Attorney, Cleveland Field Office

Meeting of May 16, 2007 - Employment Testing and Screening

Thank you, Madam Chair and Commissioners, for inviting me to participate in this important hearing about discriminatory employment testing. I’m honored to be testifying with one of our brave charging parties, Mr. James Robinson, Sr. Let me tell you about a case brought by EEOC on behalf of Mr. Robinson and a nationwide class of African-American apprentice test takers, which was resolved by a settlement agreement requiring changes in employment testing.

Mr. Robinson’s Charge.

Mr. Robinson and 12 other African-American apprentice test-takers filed discrimination charges against their employer, Ford Motor Company, and their union, the UAW. The charging parties alleged that they, and blacks as class, had been denied acceptance into the employer’s and union’s Joint Apprenticeship Program due to their race. Two charges were filed in Cleveland against Ford regarding apprentice test episodes in the Walton Hills, Ohio facility and charges by 11 other African-American test takers (including Mr. Robinson) were filed in Cincinnati against Ford, the UAW and the Joint Apprenticeship Committee regarding an apprentice test episode at Ford’s Sharonville, Ohio facility.

Ford’s ATSS Had a Disparate Impact.

Ford’s Apprenticeship Training Selection System (ATSS) was a paper and pencil test which applicants needed to pass for entry into the apprenticeship program. Written cognitive tests assess aptitude for mechanical tasks by measuring verbal, numerical and spatial reasoning.

The apprentice program was the stepping stone to certification as a skilled trades journeyman, with increased earnings, job security, job mobility as well as prestige. The Commission’s investigation ripened into an EEOC Determination that the ATSS ‘had a disparate impact on the Charging Party and on Blacks as a class.’

The ATSS had a statistically significant adverse impact against black applicants for the apprentice training program, with only two of the 51 black test takers passing, compared with 108 of 292 white test takers passing the January, 1998 Sharonville test. Nationwide, about 13,000 employees took the ATSS at 41 Ford facilities from February, 2000 to June, 2003; about 25% of those test takers were African-American.

The ATSS Was Valid.

The EEOC’s investigation found that the ATSS was properly validated in early 1991. An employer, such as Ford, may continue to rely on a validated selection procedure which has no less discriminatory alternatives (LDAs) until it reasonably should be reviewed for currency under EEOC’s regulations. Less Discriminatory Alternatives.

Although the test had been validated, the problem was that Ford’s efforts to find a less discriminatory alternative were inadequate because they were not based on expert knowledge which became current in the mid-90’s. Ford needed to bring itself into compliance with Title VII by updating its Job Analysis (which apparently had not been done more recently than 1989) and by considering less discriminatory alternative selection procedures, such as Work Sampling or Trainability Tests.

Work Sampling requires the applicant to perform tasks similar to the job’s tasks. For example, a clerical applicant with secretarial experience types a business letter, files some correspondence and takes a telephone message. Trainability Tests are for applicants without previous experience for the job or task at issue and use a period of instruction for the tested task samples. For example, inexperienced applicants for a mail room job are shown how to sort incoming mail before being asked to demonstrate sorting the mail. In contrast, a cognitive test for the mail room job might consist of providing the applicant with the job description and a mail routing guide, followed by written questions about how to sort the mail.

Resolution.

After extensive investigation and intense, adversarial negotiation, Ford and the other parties reached a settlement that achieved the objectives sought by the EEOC, the private plaintiffs, the employer and the union.

The settlement was far-reaching and advanced the public interest in compliance with Title VII. First, the settlement dramatically reformed the apprentice selection process at Ford facilities nationwide. Ford agreed to stop using the ATSS. Ford agreed that an Industrial Psychologist, jointly selected by the parties, would create and implement an innovative new process to select qualified apprentices. The new process would be designed both to predict job success and reduce adverse impact. The new apprentice selection process would be designed to provide employees with individual test results and feedback to help them identify their tested strengths and weaknesses.

The settlement also rapidly and substantially expanded skilled trades opportunities for African-American employees at Ford. Ford agreed to place 279 of its qualified African-American employees on the apprenticeship eligibility list to redress the shortfall which EEOC identified as resulting from the ATSS. This was an unprecedented achievement in settlement of an apprentice selection case. Ford also agreed to invest substantial training over a 4-year apprentice period for each of the 279 class members it selected for the apprenticeship program.

Finally, the settlement provided more than $8 million of monetary relief to the nationwide class of African-American test-takers who were not selected for the apprentice program.

It’s not enough to validate a discriminatory employment test when it is first designed. Employers need to review their tests to assure that newer, less discriminatory alternatives are considered.

Thank you for asking me to tell you about this case.

This page was last modified on May 16, 2007.