Many HR departments use pre-employment tests to find out which applicants are the best fit for the job and the company. But is that putting them at greater risk for a new type of lawsuit?

The latest challenge for employers: Avoiding tests that may unintentionally discriminate against a protected class.

Companies have gone to court because of tests that had a “disparate impact” on certain groups — even though the tests weren’t designed to discriminate.

For example, a jury last month awarded 23 firefighters in Akron, OH, $2 million after they were denied promotions because of test scores.

The plaintiffs claimed the test put white applicants and those over 40 years old at an unfair disadvantage. The highest scores — and therefore, the promotions — were disproportionately received by African-American applicants.

Also, they claimed, many of the test questions were unrelated to the position.

The jury ruled that even though the bias was unintentional, the results of the test were skewed in favor of African-Americans.

Avoiding bias claims

What can employers do to make sure they’re hiring the best applicants without being accused of bias? The EEOC offers this advice for pre-employment testing:

1. Keep the tests up-to-date — Technology is changing the way many jobs are done, and some skills are no longer necessary. The tests must be changed as the jobs do.
2. Don’t always use the same tests for different jobs — Jobs may be similar but not exactly the same. If the necessary skill sets are different, different tests should be used.
3. Beware of education requirements — Many companies require a high school diploma for a lot of positions. But lawyers warn against the practice, saying it might be hard to prove a diploma’s necessary for some menial jobs.
   
4. Don’t put blind faith in a purchased test — When buying pre-made tests, it’s important to get documentation that the test has been validated. But, the EEOC says, companies are still on the hook for making sure those tests don’t create a disparate impact when they’re used.
5. Track statistics — To avoid a disparate impact, companies can keep track of the effect a test has on different applicant groups. Some companies hire consultants to have selection procedures professionally validated.

Also, the EEOC says, even tests that show a disparate impact will be legal as long as they’re “job-related and consistent with business necessity,” and no non-discriminatory alternative is available.

Cite: Howe v. City of Akron

Here’s what happened in one recent case:

To reduce on-the-job injuries, one company started a new testing procedure for job applicants. The jobs involved some heavy lifting, so candidates were asked to carry 35-pound weights and load them onto a frame.

Applicants had to perform as many lifts as they could within seven minutes while the hiring manager observed. The candidates’ performance was a major factor in the company’s hiring decisions.

Several female applicants sued, claiming the test unfairly kept women from being hired. Before the testing was used, women made up 46% of all relevant positions — afterward, only 15% of those employees were women.

The company argued that the procedure was necessary in finding out who could do the job.

The court disagreed. On the job, employees did an average of 1.5 lifts per minute with a break after each lift — but during the test, applicants averaged six per minute without any breaks. The test was significantly more difficult than the actual job, so the company couldn’t prove it was necessary.

The case went before a jury, and the female applicants were awarded over $3 million.

Bottom line: Any test given to job applicants — whether it’s physical or written — should be in line with the actual demands of the position. That way, the company will be able to prove the test is a business necessity and fight charges that it has a negative impact on certain groups.

Cite: EEOC v. Dial Corp.