test your tests
DESCRIPTION
This presentation will explore recent developments and enforcement trends in this area and will provide strategic and practical tips for effectively managing employment testing practices and preparing for (or defending against) a challenge from OFCCP or EEOC.TRANSCRIPT
1
The materials contained in this presentation were prepared
by the law firm of Jackson Lewis LLP for the participants’
reference in connection with education seminars presented
by Jackson Lewis LLP. Attendees should consult with
counsel before taking any actions and should not consider
these materials or discussions about these materials to be
legal or other advice.
2
Represents management exclusively in every aspect of
employment, benefits, labor, and immigration law and
related litigation
Over 700 attorneys in 50+ locations nationwide
Current caseload of over 5,000 litigations and
approximately 300 class actions
Founding member of L&E Global
3
Using specially designed proprietary software, our diverse
practice group of 40 lawyers and paraprofessionals
prepares over 2200 affirmative action plans (“AAPs”)
annually for our federal contactor clients. We defend
against the imposition of citations and allegations of
discrimination in connection with audits by the Office of
Federal Contract Compliance Programs (“OFCCP”) and
offer liability avoidance services, including vulnerability
audits and statistical analyses employing the methodology
used by the OFCCP to identify potential discrimination.
4
Matthew Camardella is a Partner in the Long Island, New York office of Jackson Lewis
LLP, and a member of the Firm’s Affirmative Action Practice Group. He directs the
preparation of more than 400 AAPs each year and has defended hundreds of OFCCP
audits for a broad range of employers across the country. In addition, Mr. Camardella
serves as the Practice Group lead on responding to OFCCP allegations of class-based
discrimination. He spends significant time counseling clients about the design and
implementation of company-wide AAP structures, applicant flow tracking systems,
compensation practices and other complex “real world” compliance issues.
Mr. Camardella also is General Counsel to the American Association for Affirmative
Action (AAAA) and serves as Vice-Chair of the Philadelphia “Liberty” Industry Liaison
Group (ILG). His work with AAAA and ILG keeps him abreast of OFCCP enforcement
trends.
Mr. Camardella joined Jackson Lewis in September, 1997. He received a B.A. from the
College of the Holy Cross in 1993 and graduated with honors from Hofstra University
School of Law in 1997. While at Hofstra, he was Editor-in-Chief of the Hofstra Labor Law
Journal and received the Award for Outstanding Performance in Labor and Employment
Law. He is admitted to the New York State Bar.
5
Michelle Duncan is a Partner in the Denver office of Jackson Lewis. Michelle focuses her
practice on representing employers in affirmative action and employment discrimination
matters before OFCCP, workplace safety and health matters before OSHA and minimum
wage and overtime matters before the U.S. Department of Labor’s Wage and Hour
Division.
Michelle joined the firm after working for nearly fourteen years as a trial attorney with the
U.S. Department of Labor, Office of the Solicitor. She served in the National Office in
Washington, D.C., as well as in the Dallas and Denver Regional Offices.
During her tenure with the U.S. Department of Labor, Michelle was widely regarded as a
leading expert on OFCCP litigation. She litigated numerous OFCCP cases and provided
ongoing counsel to high-level OFCCP officials.
Michelle received her Bachelor of Arts degree in American Public Affairs from Michigan
State University, James Madison College in 1993. In 1998, she received her juris
doctorate degree, cum laude, from the American University, Washington College of Law.
She is a member of the bar in Maryland and Colorado.
6
What Is a Test
Why Use Tests
Legal Theories of Discrimination
Testing Your Test
Common Issues with Validation
7
Any selection tool that rates, ranks or scores:
o Examples:
• Cognitive
• Personality
• Pen/paper
• Electronic
• Interviews
• Background checks (criminal, credit, etc.)
8
Increased competition for jobs (rise of
online application systems and high
unemployment rates).
Tests are an efficient way to “screen
out” candidates who lack the
knowledge, skills and abilities
necessary to perform a specific job
and “screen in” those individuals most
likely to succeed.
Tests can also help employers identify
current employees for promotion.
9
As employment testing has become more prolific and sophisticated, the use of
such tests by employers has also faced increased scrutiny, especially from
Equal Employment Opportunity (EEO) enforcement agencies.
304 charges of discrimination stemming from employment testing and
prescreening background checks in 2007, total number of charges filed has
steadily increased since then.
March 2006 (EEOC’s Systemic Task Force Report): “[C]ombating systemic
discrimination should be a top priority at [the] EEOC[.]”
2011 EEOC Annual Report: The Agency “places a high priority on issues that
impact large numbers of job seekers, and employees[.]
10
Disparate Treatment
o Individual
oPattern or Practice
Disparate Impact
11
Exists when one group or individual is treated differently
than another group or individual “because of” race,
color, religion, sex, national origin, disability or veteran
status.
Proof of intent or discriminatory motive is REQUIRED!
This is not likely to occur in the employment testing
context because it would require that a test only be
given to one group of people or be specifically designed
to screen out individuals on the basis of a protected
characteristic.
12
A facially neutral policy or practice that is uniformly
applied produces a significant adverse impact on a
protected group.
o Requiring a college degree
o Employment test
o Physical requirement (such as a lifting)
Title VII of the Civil Rights Act of 1964 generally
forbids the use of employment tests that are
discriminatory in effect.
Griggs v. Duke Power (1971) 13
Disparate Impact:
XYZ, Inc. believes that a healthy
workforce is a happy and productive
workforce. XYZ has a policy that to be
considered for employment, applicants
must be able to jump high enough to
touch the net of a basketball hoop.
8 of every 10 men pass the jump test.
2 of every 10 women pass the jump test.
14
“A substantially different rate of selection in hiring,
promotion or other employment decision which works to the
disadvantage of members of a race, sex, or ethnic group.”
-Uniform Guidelines on Employee Selection Procedures
(1978) (FAQ #10)
80% or 4/5th Rule of Thumb – Uniform Guidelines
(EEOC).
2 Standard Deviations – Preferred by statisticians and
many courts.
15
“Standard Deviation” – how much variation or
“dispersion” exists from the mean or average.
Low standard deviation indicates the data points
tend to be very close to the mean (i.e., similar).
High standard deviation indicates data points are
dispersed over large range of values.
Two standard deviations signifies the point at which
statisticians say a legitimate trend exists, as
opposed to a chance relationship (with a reasonable
level of certainty).
16
Four variables are entered into the analysis:
1. Number of focal group members who pass the test
2. Number who do not pass the test
3. Number of reference group members who pass the test
4. Number who do not pass the test
17
Analysis Rate for
Disfavored
Group
Rate for
Favored Group
80%
Rule
Standard
Deviation
Minority v.
Non-Minority
2/15
.13
5/20
.25
.53 0.85
Minority v.
Non-minority
2/50
.04
5/20
.25
.16 2.65*
18
NOTE: Just because this is above 2.0 standard deviations does not mean that
an employer is automatically liable, but it does mean that the employer must
take additional steps in order to continue using the test without being liable.
An employer may use a test that has an adverse impact on
protected groups IF it can show that the assessment has a manifest
relationship to the position at issue.
o Albermarle Paper Co. v. Moody (Supreme Court, 1975)
So, companies can use tests that have an adverse impact, provided
that the employer can show that it is not being used to discriminate
intentionally and can demonstrate that the test is job-related and
consistent with the needs of the employer from a business stand
point (i.e., have the test validated).
Uniform Guidelines on Employee Selection Procedures (1978)
provide technical rules for validation and require it if an employer
finds adverse impact against a particular gender or racial or ethnic
group.
19
The employer must show either
o That the test accurately reflects the tasks performed on the job
OR
o That the test requires the test-taker to demonstrate that he or
she possesses the necessary underlying knowledge, skills or
abilities to successfully perform the job.
Example: A warehouse worker must repeatedly lift 50 lb
boxes, so the test should not relate to overall health or
whether the applicant can lift 150 lbs.
o The test cannot be considerably more difficult than the job itself.
20
Uniform Guidelines on Employee Selection Procedures –
rule book on validation requirements for EEO
enforcement agencies.
Content
o Non-statistical.
o Degree to which the content of the test matches content domain
of the job.
o Typically involves subject matter experts (SMEs) evaluating test
items against the test specifications.
21
Criterion
o Correlation between the test and criterion variable(s).
o Compares the test with other measures or outcomes (criteria)
already held to be valid (e.g., measures of job performance).
o Concurrent Validity Evidence – Test data and criterion data
collected at the same time.
o Predictive Validity Evidence – Test data collected first (to predict
criterion data collected later).
22
Construct
o Measures the extent to which developed tests actually measure
what they purport to.
o Statistical analysis of the test and the relationships between
different answers.
23
A validated test will be:
o Reliable;
o Fair;
o Minimize the potential for adverse impact; and
o Validated through studies that are large enough to establish a
confident reliability coefficient.
Also, should be validated in the context for which it will
be used and should not reflect any racial, cultural or
gender stereotypes.
Plus the test must be coupled with a back-and-forth
reasonable accommodation dialogue, if necessary, for
individuals with disabilities. 24
No consideration of reasonable alternatives
o If a properly validated test creates adverse impact then an employer
should consider if there are alternative testing means which produce
less adverse impact.
Validation study outdated
o As job responsibilities change and/or technology improves, a previously
validated test may “expire.”
o Update required every 5 years.
Reliance on validation generalization
o This means that if a test development company is guaranteeing that a
pre-packaged test is sufficiently validated, it might not pass scrutiny for
your desired use.
o Validation must be company, job and potentially facility specific.
o Transportability.
25
Issue: Employment test is more difficult than the job
itself.
Facts: Company implemented a strength test which was
coupled with a reduction in the proportion of females
hired from roughly 50% to roughly 15%.
Holding: Circuit Court upheld finding of disparate impact
and found that the use of the strength test neither
mimicked the job functions nor led to a reduction in
workplace injuries (as alleged by Company)
26
Issue: Employment test does not look for skills that are
actually necessary and critical to the duties of the job.
Facts: Company implemented an employment test which
examined applicants’ mathematical and information
locating ability for on-call labor positions in a warehouse.
Outcome: OFCCP found that the employment test did
not test skills critical to such an entry-level position.
Settled for more than a half million dollars in back
wages, interest and benefits to a class of 250+ minorities
who had failed the employment test.
27
Issue: The employment test “expires” after technology improves.
Facts: A cognitive test, which determined who got into an
apprenticeship program, had a statistically significant disparate
impact on African-American applicants, so the Company
(appropriately) had the test validated in the early 1990s. However,
the test was not subsequently modified, even after less
discriminatory selection procedures became available.
Outcome: EEOC and the Company entered into a court approved
settlement which included a monetary payment of more than eight
million dollars and a mandate that the test would be replaced by a
selection procedure designed by a jointly-selected psychologist (at
the Company’s expense).
28
Do not be scared to use an employment test:
can efficiently accomplish “screening in” and
“screening out” candidates, which will save a
company time and money in the long run.
Inventory what tests are currently in use and
evaluate adverse impact and validation
materials.
However, even if an employment test does
not have adverse impact against a particular
group then it still makes sense to have the
test validated for the specific position,
company and facility and periodically re-
validate the test as technology and usage
changes. 29
Please feel free to contact us if you have any questions:
Matthew J. Camardella
(631) 247-4639
Michelle L. Duncan
(303) 892-0404
30
31