Statement of Rae T. Vann, General Counsel, Equal Employment Advisory Council

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

Madam Chair, Madam Vice-Chair, Commissioners Ishimaru, Griffin and colleagues: On behalf of the Equal Employment Advisory Council (EEAC), I appreciate the opportunity to appear before the Commission to share EEAC's perspectives on employment testing and other selection procedures. When done properly, testing can be a very important tool in the employment selection process, and we commend the Commission on its efforts to improve the quality and fairness of tests and other job screening methods.

Introduction

EEAC is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership comprises a broad segment of the business community and includes over 300 of the nation's largest private sector corporations. EEAC's directors and officers include many of the industry's leading experts in the field of equal employment opportunity. EEAC's members are firmly committed to the principles of nondiscrimination and equal employment opportunity.

EEAC member companies are all subject to the Uniform Guidelines on Employee Selection Procedures, which provide the framework for conducting statistical analyses to determine whether tests and other selection practices have adverse impact. Under the Uniform Guidelines, the use of any selection procedure that has adverse impact is considered discriminatory, unless the procedure has been properly validated or modified to eliminate the adverse impact, or the employer can justify its use as "job-related and consistent with business necessity."

In addition, over 80 percent of EEAC's membership is comprised of federal government contractors that are required, pursuant to their obligations under federal affirmative action regulations administered by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), to monitor, on an annual basis, employment selection decisions for statistically-significant adverse impact on women and minorities. EEAC member companies are thus well-aware of their obligations to ensure employment tests and other selection criteria are administered in a manner that is fair, consistent, and nondiscriminatory, and are leaders in developing procedures that aim to comply with both the letter and the spirit of the law.

In addressing ways of validating selection procedures, the Uniform Guidelines specifically refer to the "Standards for Educational and Psychological Tests" ("APA Standards"). EEAC, under the guidance of its Committee on Employee Selection — made up largely of in-house industrial and organizational psychologists — provided comments regarding the 1999 revisions to the APA Standards, which further illustrates EEAC's understanding of the legal and technical standards applicable to employment testing and other selection procedures.

EEAC's testimony today will center on the types of tests and other selection procedures generally utilized by large employers, as well as common challenges presented by employment testing. We urge the Commission to avoid over regulating in this area and instead focus on developing education and outreach programs aimed at encouraging the development of best employment practices. We believe doing so will advance the Commission's goals of preventing and eliminating unlawful employment discrimination while encouraging voluntary compliance in lieu of protracted and costly litigation.

For What Purposes Are Employment Tests Generally Used?

Evaluate Job Qualifications

Employers use employment tests to evaluate job candidates and to determine, based on objective criteria, their suitability for employment. For many EEAC member companies, tests are attractive screening methods because, when administered properly, they can measure an individual's knowledge, skills and ability with respect to a particular job more accurately than other methods such as in-person interviews and review of prior work history, thus enhancing workforce quality, reducing hiring errors, and saving costs associated with on-the-job training.

Used in conjunction with other sources of information, a carefully selected test that is properly validated for the job for which it is being used can provide a great deal of relevant information about an applicant's qualifications for the position. For instance, an employer seeking to fill a records clerk position — for which word processing, proofreading, data entry and transcription skills are critical to successful job performance — might administer a clerical aptitude test that has been validated to accurately predict performance in the position. Technical job qualifications — such as typing proficiency — are often extremely difficult to objectively discern simply by reviewing a paper resume or conducting an in-person candidate interview.

Examples of other traditional tests commonly administered in the employment context include those that measure:

• Language skills;
• Reading comprehension;
• Verbal and/or mathematical reasoning;
• Physical abilities; and
• Personality characteristics.

By employing a test that measures a candidate's likely success in a key aspect of the position, an employer is better able to select the most qualified person for the job, which benefits not only the employer but also the successful candidate and his or her coworkers.

In large companies, standardized employment tests may be administered by internal industrial and organizational ("I/O") psychologists, external consulting I/O psychologists, internal human resource managers, designated test administrators, clerical support personnel, operating management, or a team of two or more of the above. In many cases, one central person who is well-trained in I/O psychology is sufficient to administer large, geographically dispersed testing programs. By designing processes and guides for each function associated with employment testing, one trained individual can use the talents of many people with varying backgrounds who can perform their roles well.

Use of Criminal Background Checks as a Selection Tool

Many employers conduct routine background checks as part of their employee selection process for legitimate reasons, such as to avoid making bad hiring decisions that could harm business operations or pose safety risks to employees or customers. These background investigations sometimes include information pertaining to an applicant's criminal arrest and/or conviction record. While use of such information in screening out job applicants may be legitimate under certain circumstances, EEAC member companies recognize the danger in applying blanket rules that exclude from employment anyone who has ever been arrested or convicted of a crime, regardless of the seriousness of the crime, the time that has passed since the offense, or its relationship to successful job performance.

Because inconsistent or unreasoned use of arrest and conviction records could lead to negative, unintended consequences, responsible employers are careful to rely on such records only to the extent permitted by law and only insofar as the criminal offense is relevant to an applicant's ability to successfully perform the job. One EEAC member company reports, for instance, that while it does routinely perform criminal background checks, whether it ultimately relies on such information to disqualify an applicant will depend on a number of factors, including the number, type and date(s) of conviction, as well as applicable state or federal laws barring offenders from certain jobs or restricting the use of such information in hiring decisions.

It should be noted that many companies will rescind an employment offer, or terminate a current employee's employment, if it learns the applicant or employee failed to disclose a criminal conviction on an employment application. In that case, the employment decision is based on falsification of the application, not on the existence of a criminal record itself.

Some EEAC member companies indicate they increasingly are being required by state and federal agencies to perform rigorous criminal background checks in response to heightened national security concerns. Member companies within certain industries such as transportation, for instance, already are subject to rules designed to more closely scrutinize applicants' backgrounds to determine whether they pose a safety or security threat or should otherwise be denied access to certain jobs, facilities or tasks. And the Department of Justice (DOJ) issued a report last year recommending Congress enact federal legislation that would allow private employers access to FBI criminal records databases for the purpose of verifying whether information that an employee or applicant provides is "truthful and complete."

While employer access to such databases is not likely to occur in the near future, the discussion illustrates the security-conscious environment in which employers — particularly federal government contractors — are now operating, which sometimes seemingly conflicts with good faith efforts to minimize the potential negative impact on some protected groups associated with performing such reviews.

Common Challenges Faced by Employers Utilizing Employment Tests

Lack of Substantive Knowledge Among Enforcement Staff

Employment selection tests are coming under increased scrutiny by both the EEOC and OFCCP, as a result of which EEAC member companies have been more proactive than ever in carefully reviewing their testing and other selection procedures to ensure they are being applied properly. Despite their best efforts, however, some companies report that EEOC and OFCCP enforcement staff appear to lack substantive knowledge of employment testing and validation procedures and thus often zero-in on testing "violations" that, in fact, do not exist. One member company reported, for instance, that an investigator asked the company to forward a copy of the Uniform Guidelines — which I hasten to add are codified in both the EEOC's and OFCCP's regulations — because the investigator had never heard of them.

The Uniform Guidelines provide standards the federal EEO agencies can use in determining when to initiate enforcement proceedings, urging agencies, for example, to exercise their prosecutorial discretion by giving consideration to a "bottom-line" approach to adverse impact: if an employer's overall selection process for a job does not adversely affect a protected group, the agencies ordinarily will not expect the employer to assess or validate the individual components of that process. If field investigators are not well-trained in the basics of employment selection testing and validation, they will be less able to identify real problems, such as tests that are not validated, are not job-related, or are otherwise deficient. As a result, they may use the EEOC's or OFCCP's limited enforcement resources to prosecute the wrong cases.

Ensuring All Tests and Selection Criteria Are Valid

The nature and frequency of employment testing can vary significantly within a single company depending upon job type. This diversity in testing practices makes the ongoing monitoring of compliance with the validation and other standards of the Uniform Guidelines a challenging task. One EEAC member company reports using a number of different tests at various locations and for different jobs. Some of these tests are administered in-house and others are administered by third party consultants. This company indicates that ensuring all of its tests are properly validated, especially those purchased "off-the-shelf" from an outside vendor, can be difficult, especially where the vendor has made promises and assurances regarding the legitimacy and effectiveness of a testing product.

While each employer's specific approach to utilizing and evaluating employment selection tests may vary, the following are a few basic principles that EEAC member companies strive to apply:

• Ensure each employment test has been properly validated and that the validity study is current and properly documented;
• Avoid over reliance on representations made by test manufacturers regarding test validity and suitability for a particular job; and
• Conduct periodic audits of employment selection testing procedures to monitor for possible disparate impact, significant changes in jobs, outdated validity studies and other potential problems.

Recommendations

As noted above, most conscientious employers recognize the importance of ensuring their employment tests and other selection criteria are nondiscriminatory and used for legitimate business purposes. Indeed, EEAC member companies view properly administered tests as an important means of ensuring they hire the best qualified job candidates.

Because it is in every employer's best interest to ensure their employment tests are valid and effective selection tools, we encourage the Commission to develop education and outreach programs aimed at assisting both its own investigators as well as employers to understand the rules that apply to testing and selection procedures. Since the Uniform Guidelines continue to provide the basic regulatory framework for determining adverse impact, there is no need for further regulation or guidance on this subject.

Conclusion

EEAC commends the Commission on its efforts to address potential discrimination associated with the use of employment tests and other selection criteria. We appreciate the opportunity to provide the agency with our thoughts, which we hope it will consider earnestly as it moves forward in this important endeavor. Thank you.

This page was last modified on May 11, 2007.