lehmann and crimando 2006 veiled barriers

7/28/2019 Lehmann and Crimando 2006 Veiled Barriers

1/12

Volume 28(1) VeiledBarriers

Vei led B ar rier s: Pr e-Emp l oyme ntTes t in g an d D is ab i l i ty/lana S. LehmannWilliam Crimando, Ph.D.

Abstract. The Americans with Disabilities Act of 1990 was enacted, inpart, to end discrimnationagainst individuals with disabilities in employment. More than ten years after its implementation,this new protected class continues to have a higher than average unemployment rate.Discrimnation arising from the use of pre-employment testing mght contribute to this disparityand act as a barrier to employment for individuals with disabilities. Some of these commonly usedpre-employment screening measures include biodata, cognitive ability tests, honesty tests, person-ality tests, and situational judgment tests. Twomajor issues concerning the use of these tests dom-inate the legal landscape: adverse impact and job relatedness. Relevant ethical issues include thelack of independent research validating thepredictive power of these tests, confidentiality, privacy,and labeling.Veiled Barriers: Pre-Employment Testing and DisabilityThe fallacy that fair and equal treatment of all job seekers occurs when employers administer thesame pre-employment tests to all applicants permeates the field of employment testing (Haney,1982; Hartigan & Wigdor, 1989). According to the Office of Technology Assessment, pre-employ-ment tests have shortcomings identical to those found in other psychometric tests, that is, limits inall types of validity and intrinsic susceptibility to faking (Oversight Hearing, 1990). Although someof these tests might possess moderate reliability, most remain poor predictors of future on the jobbehavior (Minor &Capps, 1996). Most job seekers are unaware that the results from these pre-employment tests might be the basis of employment decisions. Employers too often rely on thesemeasures without due regard for the systematic biases these tests contain, thereby producing theunintended consequence of discrimination against certain groups (Campbell & Kleinke, 1997).Discrimination occurs when people with equal probabilities of success in a job confront unequalprobabilities in the hiring process for that job (Guion, 1966). Rehabilitation counselors who assistpeople with disabilities in vocational placement should be acutely attentive to the role played bypre-employment tests in the hiring process and the inherent and often veiled barriers these testspresent. Further, rehabilitation administrators should be aware of both the problems that pre-employment tests may present to staff and their clients, as well as the dangers inherent in their ownuse of such tests.Despite the enactment of statutes designed to curtail or eliminate discriminatory employment prac-tices, such as theRehabilitation Act of 1973 (P.L. 93-112), Americans with Disabilities Act of 1990(P.L. 101-336), and the Civil Rights Act of 1991 (P.L. 102-166), undue barriers to employment for

J ournal of Rehabilitation Admnistration 11


2/12

Veiled Barriers Volumeindividuals with disabilities continue to exist. According to arecent Harris Poll, commissionethe National Organization onDisabilities (2004), only 32% of people with disabilities in the UStates are employed on a full or part time basis, compared with 81% of non-disabled AmericNot only is the unemployment rate for people with disabilities greater than for those without,ple with disabilities, as a discrete group, earn less on average than people without disab(DeLeire, 2000). The theory that the figures for the unemployment rate among people with diities reflect voluntary self-selection out of the workforce is not supported by research (Tho2001). Attributing the difference in employment rates to characteristics or behaviors endogenothe individuals with disabilities is to adopt a classic "blame the victim" approach (Pearson2003).Barriers to employment for individuals with disabilities can begin with the hiring practiceemployers. With the exception of laws restricting the use of polygraphs in the pre-employmselection, the hiring procedures used by employers remain largely unregulated (Befort,Decker, 1986; Faust, 1996; Haney, 1982). The polygraph ban was followed by an increase iuse of various psychological tests in the pre-employment process (Minor &Capps, 1996; M1996; Vetter, 1999; Yamada, 1993). Studies indicate the use of pre-employment tests have increannually; for example, it is estimated 5,000 to 6,000 businesses in the United States presentlyhonesty tests in the hiring process, resulting in the administration of anestimated 3.5million pand-pencil honesty tests each year by employers (Befort, 1997; Minor &Capps, 1996; OverHearing, 1990). Discrimination in hiring based on race, color, sex, religion, national origin, oability is considered unlawful, but there is no case law that it is also unlawful and discriminato refuse to hire a job applicant if the applicant refuses to provide information demanded bemployer (Oversight Hearing, 1990; Rothstein, 1991).The purpose of this article is to describe how pre-employment testing represents apotential ber to employment for individuals with disabilities. Accordingly, the fivemost common pre-empment tests are described. A brief history of how the Civil Rights Acts have provided the baschallenges topre-employment testing as atool of discrimination against protected groups, andcases that have become part of the case law are presented, followed by implications for therecently recognized protected group: individuals with disabilities. Finally, some of the etaspects of pre-employment testing are discussed.Pre-Employment TestsThe pre-employment screening process generally begins with the completion of ajob applicaform (Befort, 1997; Minor & Capps, 1996). For the purposes of this paper, discussion will beited to the types of pre-employment tests that are generally conducted in apencil-and-paper forwith afew available in acomputerized format (Barrett, 1998). Pre-employment tests lack indepent research findings as to an impact from their usage by employers on thehiring and employmof individuals with disabilities. There areother pre-employment screenings that companies rouly conduct that arebeyond the scope of this paper, which include interviews (Hahn, 1993), medscreenings (including drug and alcohol testing)(Frierson, 1993), criminal background ch(Player, 1999), credit checks, and reference checks.Biodata. Biodata (biographical data) is generally defined as asystematic measure that requiresple to describe behaviors and events that occurred in their lives. The basis of validity offered bycreators of biodata tests is derived from the theory that past behaviors and experiences are accu12 Journal of Rehabilitation Admnistrat


3/12

Volume 28(1) VeiledBarrierspredictors of future behaviors and ultimately predict success in various occupations (Minor &Capps, 1996; Nickels, 1994).Cognitive Ability Tests (CAT). Cognitive ability tests are used to measure intellectual functioning(e.g. intelligence) or to measure the results of intellect application, such asjob knowledge, rules ofgrammar, or knowledge of a specific skill area such as electronics. These particular tests aredesigned to identify applicants who have the knowledge necessary to do the particular work, or todeliniate those who have the ability to acquire it (Barrett, 1998; Campbell & Kleinke, 1997).Honesty Tests. The terms honesty test and integrity test are often used interchangeably. Honestytests aremarketed as ameans to identify individuals who have ahigh propensity to lie, steal moneyand property on the job, or commit other acts of dishonesty. Integrity tests, on the other hand, aretouted as a tool used to identify people who are likely to engage in counter-productive behaviors,such as sick time abuse, tardiness, and absenteeism (Miner & Capps, 1996; Oversight Hearing,1990). These tests are commonly divided into two groups. Overt integrity tests make inquiry intothe attitudes of the examinee towards dishonesty and also seek to obtain confessions of past mis-conduct. Personality-based measures, also called veiled-purpose tests, are intended tomeasure per-sonality characteristics thought to be related, some positively and some negatively, to honesty fac-tors, broadly defined, as "conscientiousness, trouble with authority, thrill seeking, nonconformity,dependability, and the like" (Minor &Capps, 1996, p. 4).Personality Tests. Pre-employment personality tests are usually objective tests constructed in atrue/false or forced answer format. They can be classified in one of two ways: First, some tests arenormative, where the questions aredesigned to measure a single trait such as motivation by com-paring test-takers to a normative group that has taken the test. Alternately, tests can be ipsative,where the basis for comparison is the individual's response to items in relation to her or his com-mon response. Thus the test yields a ranking/rating of multiple personality traits such as emotion-al adjustment and social relations (Barrett, 1998; Mello, 1995; Mook, 1996).Situational Judgment Tests (SJT). Situational Judgment Tests purport to measure the work ethic,judgment, and other job related constructs of the job applicant (Campbell &Kleinke, 1997).Anti-Discrimnation Laws

While Title VII of the Civil Acts Rights of 1964, as amended, prohibits discrimination in theemployment process on the basis of race, sex, color, religion, or national origin, its provisions donot prohibit use of employment tests. To the contrary, Section 703(h) of theAct states, in part: "N.9fshall it be an unlawful employment practice for anemployer to give and act upon the results of anyprofessionally developed ability test provided that such test, its administration, or action upon theresults is not designed, intended, or used to discriminate because of race, color, religion, sex ornational origin" (as cited in Barrett, 1998, p.2).The non-discriminatory employment procedures mandated by the Civil Rights Act of 1964, laterimplemented and enforced by the Equal Employment Opportunities Commission (EEOC)Guidelines, generated more than 100 court decisions between 1968 and 1977, all based, at least inpart, on Title VII of theAct (Haney, Madaus, &Lyons, 1993). Two standards for judical review ofemployment testing emerged from these decisions: adverse impact and job-relatedness (Barrett,1998; Befort, 1997; Campbell &Kleinke, 1997; Hartigan &Wigdor, 1989).Adverse or disparate impact initially arises when a statistical comparison between the selectionJournal of Rehabilitation Admnistration 13


4/12

Veiled Barriers Volume 28(1)ratio of minority job applicants-that is, those in aprotected class-vis-a-vis that of non-minorityjob applicants shows a ratio which favors the non-minority to a minimally disproportionate level(Outtz, 2002). The ratio was defined by the Equal Employment Opportunity Commission (EEOC)as the four-fifths rule; under this rule, if an employee selection method results in aselection rate forany minority group that is less than 80% of the selection rate for the group with the highest rate,theEEOC will consider there to beevidence of disparate impact. This creates arebuttable presump-tion that the hiring or selection process is unlawfully discriminatory (Barrett, 1998). A prima faciecase of adverse impact has then been established. In the seminal case of Griggs v. Duke Power Co.(1971) the U.S. Supreme Court held that the word "used" in Title VII meant that the effect of theselection procedure "used" by the employer was discriminatory even if the intent behind theprocess was not. When adverse impact is demonstrated, the burden shifts to the employer to rebutthe presumption of unlawful discrimination through ashowing that the test or other hiring or selec-tion procedures are job-related. In the case of Griggs, the company had conducted no validationstudies to determine if there was a relationship between tests scores and job performance.Consequently the Court held that the employer had engaged in unlawful discriminatory hiring prac-tices.In Albemarle Paper Company v.Moody (1975), the U.S. Supreme Court reaffirmed its decision inGriggs by holding that once adverse impact is demonstrated, the burden of proof shifts to theemployer who is then required to present legally sufficient evidence that the selection tests arejobrelated (Barrett, 1998; Haney, 1982). In the Albemarle case, the Court was highly critical of thequestionable validity studies conducted by an industrial psychologist retained by the employer on"the eve of the trial" (Haney, 1982, p. 18).Disagreements as to what type of validity constitutes ademonstration of job-relatedness in testingcontinue in the testing industry (Haney et aI., 1993). The U.S. Supreme Court established amorelenient standard of review in Washington v. Davis (1976). The Court, for job-relatedness justifica-tion, found content validity and criterion validity to be sufficient. In this case, the only predictivevalidity demonstrated was that the test predicted future performance during job training (Barrett,1998; Haney, 1982). Different kinds of validity arenot just different levels in astatistical hierarchy.The ultimate goal of an employment test is prediction. Employers wish to predict who will and whowill not perform successfully in aparticular job (Haney, 1982). The resolution of the debates overthese issues continues to elude those in the employment testing industry (Bell, 1993).Individuals with disabilities. The cultural practice of translating physical abnormality into socialinferiority is a major component of the history of disability discrimination (Rubin & Roessler,2001). The enactment by Congress in 1973 of the Rehabilitation Act was themost significant fed-erallaw benefiting individuals with disabilities enacted to that date, and provided a IS-year reser-voir of experience for use in crafting theAmericans with Disabilities Act of 1990 (ADA: Devience& Convery, 1992;Vetter, 1999). TheADA was followed by the Civil Rights Act of 1991, anAct thatextended coverage of the two prior laws. The use of employment tests was permitted by the 1991Act provided that such tests are, in fact, job related and consistent with business necessity (Arnold& Thiemann, 1994; Befort, 1997). However, the 1991 Act prohibited race norming, referring to atest score adjustment, aseparate criteria score, or otherwise altering the scores of employment relat-ed tests on the basis of race, color, religion, sex or national origin of the applicant (Riggar, Maki,& Flowers, 1991). The 1991 Act also specified the damages obtainable by aggrieved parties incases of intentional discrimination in employment, strengthened the burden of proof requirementsto be met by employers defending employment tests, and provided forums and procedures for14 J ournal of Rehabilitation Admnistration


5/12

Volume 28(1) VeiledBarriers

prompt and orderly resolution of challenges. Progress toward fair employment practices has defi-nitely occurred, but the road remains long and winding. Improvement of selection procedures isonly part of what will be required to complete the journey (Barrett, 1998).A Second L ook at TestingJob applicants are seldom given the underlying reasons for non-hiring (Barrett, 1998). The dearthof litigation involving employment tests of individuals with disabilities does not, in and of itself,prove that these tests do not contribute to discrimination in hiring. Rather, it is more accurately areflection of the practice of companies marketing employment tests advising employers not todis-close the impact of the test scores on their hiring decisions (Rothstein, 1991). Thewidespread adop-tion of these non-disclosure policies by employers effectively forestalls legal challenges to the law-fulness of pre-employment testing, as most rejected applicants will lack knowledge of the signifi-cant impact their test results had in the hiring decision (Yamada, 1993). Consequently, employmenttests have been insulated from judicial scrutiny (Faust, 1996).Adverse ImpactAccording to the publishers of honesty tests, an adverse impact on minorities and women from theuse of the test has not been demonstrated (Oversight Hearing, 1990). However, no independentresearch studies havebeen conducted to determine if this testing has produced or caused an adverseimpact on individuals with disabilities (Hartigan & Wigdor, 1989). The data which lead to the con-clusions reached by independent reviews are, in fact, generated by the test designers, publishers,and marketers themselves and generally have not been subjected to independent verification(Sackett & Harris, 1984; Yamada, 1993). In addition, the protected class defined as "individualswith disabilities" is so heterogeneous as compared to racial or gender groupings, that such a studywould be very difficult to conduct without amore readily identifiable means of identifying a dis-crete group for analysis purposes. Yet, studies of sub-groups, such as individuals with mental ill-nesses or cognitive impairments could be conducted todetermine the potential, and perhaps likeli-hood for, pre-employment test results unfairly penalizing these individuals in the employee selec-tion and hiring stages (Hartigan &Wigdor, 1989).In the U.S. Supreme Court decision of Albemarle, the Court cited the Standards of the AmericanPsychological Association and pointed out that a test should be validated on people as similar aspossible to those to whom it will be administered. The Court further stated that differential studiesshould be conducted onminority groups wherever feasible (Haney, 1982).There is no conclusive evidence that a significant correlation exists between test scores on apre-employment test and future on the job behavior (Decker, 1986). The small number of individualswith disabilities in the workforce implies that the norming of pre-employment tests was conductedwith a biased sample of non-disabled workers (Hartigan & Wigdor, 1989). For example, biodataand Situational Judgment Tests (SITs) use the answers of current successful employees as the cri-terion for scoring the answers of job applicants (Campbell & Kleinke, 1997). Given the history ofdiscrimination in employment experienced by individuals with disabilities, this norrning proceduremeans that individuals with disabilities were not likely part of the group that normed these meas-ures. Yet these tests will begiven to individuals with disabilities when they apply for positions andtheir tests are supposed to predict their likely occupational success for that specific position(Barrett, 1998; Hartigan &Wigdor, 1989; Stark, Chernyshenko, Lee, &Drasgow, 2001).



6/12

Veiled Barriers Volume 2J ob RelatednessJob Relatedness is interrelated with test validity. With regard tojob screening tests, validity canbe stated as "does test performance tell us anything important about future job performance?" Mof the available evidence indicates that it does not (Haney, 1982; Oversight Hearing, 19Rothstein, 1991). While biodata haveminor degrees of demonstrated predictive power, statisticly significant predictive validity, usually presented as acorrelation between atest and ameasurejob performance, may fail to account for other variables that also affect job performance. For exple, while socioeconomic status is a fairly good predictor of job success in certain occupationsis also highly correlated with verbal ability. Thus, it follows that the use of biodata in employmselection could erroneously prompt an employer who desires good verbal skills in an employeeexclude from hiring consideration those individuals in the lower socioeconomic brackets (Han1982). Predictive validity for all of thepre-employment tests is so low that most test publishers orelease their validity studies for other types of validity, such as face validity, criterion validity,concurrent validity (Oversight Hearing, 1990).Pre-employment tests aredesigned to screen out, not screen in, job seekers (Befort, 1997; MinorCapps, 1996). Employers are concerned about test takers who register as false-positives, thatpeople who will pass the test but subsequently do poorly on the job. In the matter of honesty tethese would be people who scored above the cut-off point, but later stole from the employer.test design is manipulated in an attempt to predict that all test takers above a certain cutoff scwill be honest employees; cutoff scores are set high to minimize false positives (i.e., persons wtest as "honest" but turn out to be dishonest on thejob). It is not intended to predict that all testers who score below that score aredishonest; when false positives areminimized, false negativaremaximized. Furthermore, if the tests areas reliable asthe publishers claim, aperson who ismclassified as dishonest will be similarly misclassified on subsequent tests, thereby creating agrof people who arerepeatedly misclassified and, therefore, systematically denied employment wout just cause (Faust, 1996; Oversight Hearing, 1990).Americans with Disabilities ActPre-job offer questions regarding the presence of an applicant's disability arebanned, accordingthe EEOC guidelines, in order to ensure that a hidden disability (including any prior history odisability of an applicant) is not considered before the employer evaluates the non-medical or ndisability qualifications of the applicant (Befort, 1997). Bordieri and Drehmer (1986) found thatapplicants with hidden disabilities typically generated agreater negative impact in the rating scorIt has been suggested, based on research, that denial of a disability status might provide an efftive means to cope with the stigma attached to a disability (Olney, Kennedy, Brockelrnan,Newsom, 2004). The ADA provides that an individual can request a reasonable accommodationthe administration of an employment test (Barrett, 1998). However, if the test is administered prto the job offer, then obviously the individual will be required to disclose a disability prior tooffer. For example, ajob seeker with a learning disability, whereby the only impairment involvthe ability of the applicant to take pencil-and-paper tests could be placed in aprecarious positi(Arnold & Thiemann, 1994; Mook, 1996). Moreover, tests in alternate forms must be validatindependently toinsure they areequivalent. Once atest format has been changed, significant threto the validity of the scores are created (Ployhart, Weekly, Holtz, & Kemp, 2003).Biodata, honesty tests, and personality tests have been criticized for inquiring into "off-dutbehaviors that lack face validity for job relevance (Campbell &Kleinke, 1997; Mael, Connerly,16 J ournal of Rehabilitation Admnistratio


7/12

Volume 28(1) Veiled BarriersRay, 1996; Mello, 1995). Questions such as: "Do you make your bed?" and "How often during theweek do you go to parties?" not only ask about off-duty behavior, but they also have highly tenu-ous job relevance (Oversight Hearing, 1990). A California decision, Soroka v. Dayton-HudsonCorp. (1989), illustrates some of the potential legal implications of integrity and personality test-ing. In Soroka, the California Court of Appeals granted a preliminary injunction against use by aretail employer of apersonality test in screening job applicants for store security officer positions.This particular test, Psychscreen, included questions pertaining to both religious beliefs and sexu-al practices. The Court enjoined the use of this test on both constitutional and statutory grounds:First, the Court found that the test was likely to violate California's constitutionally protected rightto privacy. The Court further found that the employer could justify the privacy invasion occasionedby the test only upon presentation of sufficient evidence that the invasion serves acompelling, job-related interest. TheCourt ultimately held that the employer in this case had failed tomeet this stan-dard of review with respect to the questions about religion and sex. The Court also decided that thetest at issue was likely to violate anti-discrimination statutes in its requirement that job applicantsdivulge information concerning religious beliefs and sexual orientation (Befort, 1997).Psychiatric disabilities are often diagnosed by the same personality tests used in pre-employmentscreenings (Bell, 1993). Therefore, the administration of apersonality test upon an individual witha mental illness could constitute a prohibited pre-job offer medical exam (Arnold &Thiemann,1994, Befort, 1997; Campbell & Kleinke, 1997). TheADA specifically recognized recovering alco-holics as anew protected class. Honesty tests, personality tests, and biodata that inquire into, or askfor admissions of previous drug and alcohol use violate the safe harbor protection of the ADA(Mook , 1996; Yamada, 1993) and are directly contrary to the EEOC guidelines (Befort, 1997).Cognitive Ability Tests (CATs) and Situation Judgment Tests (SJTs) often have superior face valid-ity in the connection to job relatedness (Campbell &Kleinke, 1997; Outtz, 2002). Logically, anemployer should be allowed to test apotential accountant on knowledge or ability of the applicantto do math and keep financial ledgers. However, many paper-and-pencil CATsand SJTs are admin-istered for jobs of which writing is not considered an essential job element, such as productionworkers or firefighters (Mook, 1996). In aFederal Court opinion wherein a firefighter successful-ly challenged aCAT, the Court summarized the conundrum presented by the issues in the case: "Ifthe Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocab-ulary, the team might acquire authorities ... who could not bat, pitch, or catch" (Boston ChapterNAACP v. Beecher, 1975).Ethical IssuesIndependence of ResearchTest publishers themselves have conducted the vast majority of research regarding the use of pre-employment tests. In their review of the published studies regarding test validity, the Office ofTechnology Assessment found that all of the studies had significant methodological flaws(Oversight Hearing, 1990). While some of the studies conducted by test publishers have beenreleased to independent researchers, there is no existing means available to determine if less favorablestudies have simply been unacknowledged or undisclosed. In addition, test publishers have no legalobligation or duty to release negative information about their own tests (Barrett, 1998). Independentvalidity studieshavebeenhampered by therefusal of testpublishers torelease scoring keys on the asser-tion that this violates their proprietary rights in the keys (Oversight Hearing, 1990).J ournal of Rehabilitation Admnistration 17


8/12

Veiled Barriers Volume28(1)Confidentiality of ResultsCertain existing laws and regulations governing employment records are intended to protect theconfidentiality of the personal information stored therein (Privacy Act of 1974). However, rarelydoes this protection apply to the records pertaining to job applicants. Without sufficient restraintson the ability of employers to disclose pre-employment test results to third parties, including otheremployers, highly personal information which job applicants are required to provide in the pre-employment selection process can be distributed to others without the knowledge or consent of thejob applicants (Faust, 1996). Biodata test questions have been described by some research partici-pants as "intrusive" inquiries into ajob applicant's personal life (Mael et aI., 1996). Some of thequestions involved such private matters as age of first sexual activity, miscarriages, religious behav-ior and dating frequency. Furthermore, any questions relating to physical andmental health of ajobapplicant or family members might be inviolation of theADA when such inquiries delve into suchareas as frequency of headaches, parental illnesses, worries about the future, previous suicideattempts, and traumatic events (Campbell & Kleinke, 1997; Mael et aI., 1996). Given that the rela-tionship between these biodata items and personality variables is, at best, describable asweak, bio-data items which are especially offensive and which lack face validity for both job-relatedness andbusiness necessity should be considered unethical and prohibited (Haney, 1982; Rothstein, 1991).In addition to biodata, personality tests have been criticized for similar privacy concerns (Mook,1996).Informed ConsentOften employment tests include, as part of the instructions to the test-takers, the declaration thatthere are no right or wrong answers on the particular test. As Barrett (1998) points out, the first stepin scoring atest isto compare theanswers of aparticular examinee to ascoring key. Then the stand-ing of the examinee on the norm tables is determined. According to the American PsychologicalAssociation (1972) Ethical Principle 6.15, Deception in Research, deceptive techniques must bejustified in terms of the value to the participant, the advancement of science, or a clear disclosurethat deception may bepart of the overall participation in the procedure. Arguably, then, the instruc-tions declaring the non-existence of right or wrong answers violate this ethical principle (Barrett,1998).LabelingMany honesty tests include a punitiveness scale which contains questions that job applicantsanswer by agreeing or disagreeing with disciplinary actions imposed upon employees who are saidto have been caught stealing or in some way engaging in dishonest behavior. Those job applicantswhose honesty test answers favor the grant of a "second chance" to those described as misbehav-ing, will be penalized in the scoring of the test (Decker, 1986; Minor & Capps, 1996; OversightHearing, 1990; Yamada, 1993). A label of "dishonest" is seen asmore serious than alabel of "belowaverage intelligence" or other labels with low social desirability ratings derived from other employ-ment tests (Coyne & Batram, 2002; Stone, 1991). The ethical query is whether it is permissible foran employer to make a judgment as to the honesty of ajob applicant on the basis of a self-reportmeasure that has previously displayed ahigh rate of misclassification errors (Barrett, 1998; Coyne&Batram, 2002; Faust, 1996; Oversight Hearing, 1990).

18 Journal of Rehabilitation Admnistration


9/12

Volume 28(1) VeiledBarriersConclnsionIdentification of the proximate cause of disparity in employee test performance is ahighly contro-versial and politically charged pursuit. Some performance disparities on employment tests areundoubtedly attributable to the consequences from the conditions of exclusion, educational segre-gation, and discrimination to which individuals with disabilities have been subjected prior to thetesting. That is, they might be "real" disparities (Haney, 1982). The influence of construct validity,alternate forms validity, and differences in culture and experience for individuals with disabilitiesmay also be contributors to any testing disparity. Inferior education and physical barriers that limitfull community participation, and discrimination in the workplace have exerted acumulative effecton individuals with disabilities. The main contention of this discussion is that currently no meansexist to determine if pre-employment testing represents a barrier to employment for individualswith disabilities or the degree to which observed disparity in test performance is due to "real" dif-ferences in ability as opposed to other factors. Before a person can overcome a barrier she or hemust know it is there.Despite inherent shortcomings in their professed objectives, the seemingly "scientific results"attributed to pre-employment tests cause all differences to "appear" real. In cloaking imperfectmeasurements beneath the veil of science, the numbers touted by the test publishers are injectedwith an air of authority, legitimacy, and truth that intentionally or otherwise, ultimately disguise theugly reality of discrimination produced by the process.ReferencesAlbemarle Paper Company v. Moody, U.S. S.Ct., 422 U.S. 405 (1975).American Psychological Association. (1972). Ethical principles of psychologists and code of con-duct. American Psychologist, 47,1597-1611.Americans with Disabilities Act of 1990,42 U.S.c. 12101 et seq. (West 1993).Arnold, D. w., &Thiemann, A. J. (1994). Psychological testing in ADA's wake [Electronic ver-sion]. Security Management, 38, 43-45.Barrett, R. S. (1998). Challenging themyths offair employment practices. Westport, CT: Quorum.Befort, S. F. (1997). Pre-employment screening and investigation: Navigating between a rock andahard place. Hofstra Labor Law Journal, 14,365-419.Bell, R. C. (1993). Measure for measure: A review of personality tests. InM. Smith &V.Sutherland(Eds.), International review of professional issues in selection and assessment (pp. 89-134). WestSussex, England: John Wiley & Sons.Bordieri, J . E., & Drehmer, D. E. (1986). Hiring decisions of disabled workers: Looking at thecause. J ournal of Applied Social Psychology, 16, 197-208.Boston Chapter NAACP v. Beecher, 42t"U.S. 910 (1975).



10/12

Veiled Barriers Volume28(Campbell, W. J .,&Kleinke, D. J. (1997). Employment testing in private industry. In R. F. Dillo(Ed.), Handbook on testing (pp. 308-331). Westport, CT: Greenwood.Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e et seq. (West, 1993).Civil Rights Act of 1991,42 u.s.c. 1981a et seq. (West, 1993).Coyne, I., & Bartram, D. (2002). Assessing the effectiveness of integrity tests: A reviewInternational Journal of Testing, 2,15-34.Decker, K. H. (1986). Honesty tests: Anew form of polygraph? Hofstra Labor Law Journal, 4,141151.DeLeire, T. (2000). The unintended consequences of the Americans with Disabilities AcRegulation, 23, 21-24. Retrieved October 29, 2003, from http//:www.cato.org/pub/regulationlregv23n1/deleire.pdf.Devience,A. Jr.,&Convery, J. J . (1992). A primer on the new workplace law: The Americans wiDisabilities Act. J ournal of Rehabilitation Admnistration, 16,40-45.Faust, Q. e. (1996). Integrity tests: Do they have any integrity? Cornell Journal of Law and PubliPolicy, 6, 211-232.Frierson, J. G. (1993). The legality of medical exams and health histories of current employeeunder the Americans with Disabilities Act. J ournal of Rehabilitation Admnistration, 17, 83-89.Griggs v. Duke Power Co., 401 U.S. 424 (1975).Guion, R. M. (1966). Employment test and discriminatory hiring [Electronic version]. IndustriaRelations, 5,20-37.Hahn, H. (1993). Equality and the environment: The interpretation of "reasonable accommodations" in theAmericans with Disabilities Act. J ournal of Rehabilitation Admnistration, 17, 101106.Haney, C. (1982). Employment tests and employment discrimination: A dissenting psychologicalopinion. Industrial Relations Law Journal, 5,1-86.Haney, W. M., Madaus, G. F., & Lyons, R. (1993). Thefractured marketplace for standardized tesing. Boston: Kluwer-Academic.Hartigan, J .A., & Wigdor, A. K. (Eds.). (1989). Fairness in employment testing: Validity generalization, mnority issues, and the General Aptitude Test Battery. Washington, D.C.: NationaAcademy Press.Mael, F.A., Connerly, M. M., & Ray,A. (1996). None of your business: Parameters ofbiodata invasiveness [Electronic version]. Personnel Psychology, 49, 613-650.

20 J ournal of Rehabilitation Admnistration


11/12

Volume 28(1) Veiled BarriersMello, J. A. (1995). Personality screening in employment; Balancing information gathering and thelaw. Labor Law Journal, 46(10),622-626.Minor, J . B., & Capps, M. H. (1996). How honesty testing works. Westport, CT: Quorum.Mook, J. R. (1996). Personality testing in today's workplace: Avoiding the legal pitfalls [Electronicversion]. Employee Relations Law Journal, 22(3), 64-88.National Organization on Disability. (2004, January 21). The state of the union for Americans withdisabilities 2004. Retrieved March 19,2004, from http://www.nod.org/ content.cfm?id=1488.Nickels, B. J . (1994). The nature of biodata. In G. S. Stokes, M. D. Mumford, & W. A. Owens(Eds.), Biodata handbook (pp. 1-16). Palo Alto, CA: Consulting Psychologists Press.Oversight Hearing on OTA report: Truth and honesty testing: (1990). Hearing before theSubcommttee onEmployment Opportunities, House of Representatives, 101st Cong., 1.Olney, M. F., Kennedy, J., Brockelman, K. F., &Newsom, M. A. (2004). Do you have a disabili-ty? A population-based test of acceptance, denial, and adjustment among adults with disabilities inthe U.S. J ournal of Rehabilitation, 70(1), 4-9.Outtz, J. L. (2002). The role of cognitive ability tests in employee selection [Electronic version].Human Performance, 15,161-171.Pearson, v., Ip, F., Ho, H., Yip, N., Ho., K. K., & Lo, E. (2003). To tell or not to tell: Disability dis-closure and job application outcomes. Journal of Rehabilitation, 69(4), 35-38.Player, M. A. (1999). Federal law of employment discrimnation (4th ed.). St. Paul, West Group.Ployhart, R. E., Weekly, J. A., Holtz, B. c., & Kemp, C. (2003). Web-based and paper-and-penciltesting of applicants in proctored setting: Are personality, biodata, and situational judgment testscomparable? Personnel Psychology, 56, 733-752.Privacy Act of 1974, 5 U.S.C 1982 552a (1974, December 31).Rehabilitation Act of 1973,29 U.S.c. 794 (West, 1993).Riggar, T. F., Maki, D., & Flowers, C. (1991). Civil Rights Act of 1991. J ournal of AppliedRehabilitation Counseling, 22(4), 37-43.Rothstein, M. A. (1991). Wrongful refusal to hire: Attacking the other half of the employment-at-will rule. Connecticut Law Review, 24, 97-146.Rubin, S. E., &Roessler, R. (2001). Foundations of the vocational rehabilitation process (5th ed.).Austin, TX: PRO-ED.Sackett, P. R., & Harris, M. M. (1984). Honesty testing for personnel selection: A review and cri-tique. Personnel Psychology, 37, 221-245.J ournal of Rehabilitation Admnistration 21


12/12

Veiled Barriers Volume

Soroka v.Dayton-Hudson Cop., H-143S79-3 (Cal .:Filed Nov. 24,1989).Stark, S., Chernyshenko, C. K., Lee, W., &Drasgow, F. (2001). Effects of the testing situatiitem responding: Cause for concern. J ournal of Applied Psychology, 86,943-953.

Stone, D. H. (1991). Pre-employment inquiries: Drug testing, alcohol screening, physical ehonesty testing, genetics screening--do they discriminate? Akron Law Review, 25, 367-412.Thomas, A. (2001) The multidimensional character of biased perceptions of individuals witabilities. J ournal of Rehabilitation, 67(2), 3-9.Vetter, G. R. (1999). Is a personality test a pre-job offer medical examination underNorthwestern University Law Review, 98, 597-639.Washington v. Davis, 426 U.S. 229 (1976).Yamada, D. C. (1993). The regulation of pre-employment honesty testing: Striking atemporaryance between self-regulation and prohibition. Wayne Law Review, 39,1549-1587.

2 2 Journal of Rehabilitation Admnistra

lehmann and crimando 2006 veiled barriers

Documents