Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are different kinds, but the tests that are currently generating the most interest (and the most questions) are personality or integrity tests. Such tests assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, risk aversion) or aim to predict the likelihood that a person will engage in certain misconduct (e.g., theft, absenteeism, dishonesty).
However, employers must be cautious in using such tests. The tests must be job-related, consistent with business necessity, and applied consistently. Even then, hiring tests can sometimes disproportionately disadvantage a minority class of applicants based on race, gender, sex, etc. and, in the process, violate federal and state anti-discrimination laws (called “disparate impact” discrimination).
Is There A Disparate Impact?
Under Title VII of the Civil Rights Act of 1964, integrity tests are permitted as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(h). Title VII also imposes restrictions on how to score such tests. For example, employers are not permitted to (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. Id. at § 2000e-2(l).
Even if a given test is truly “neutral” in its purpose and administration, Title VII also prohibits employers from using neutral tests or selection procedures that have the unintended effect of disproportionately excluding persons based on race, color, religion, sex, or national origin (i.e., “disparate impact”).
In disparate impact cases, courts examine whether the employer uses a particular employment practice that has a disproportionately negative effect on applicants based on their race, color, religion, sex, or national origin – even there was no ill intent by the employer. For example, if you require that all applicants pass a physical agility test, does the test disproportionately screen out women? Determining whether a test or other selection procedure has a disparate impact on a particular group ordinarily requires a statistical analysis to determine.
Using a Test to Evaluate a Test
One method commonly used to determine if an integrity or personality test has a disparate impact on a certain group is to validate the test using the Uniform Guidelines on Employee Selection Procedures (UGESP) which the EEOC has adopted. (See 29 C.F.R. Part 1607.) UGESP outlines three different ways you can validate your hiring tests through a validation process:
- Criterion-related validation: a statistical demonstration of a relationship between scores on a selection procedure and job performance of a sample pool of workers.
- Content validation: a demonstration that the content of a selection procedure is representative of important aspects of performance on the job.
- Construct validation: a demonstration that (a) a selection procedure measures a construct (something believed to be an underlying human trait or characteristic, such as honesty) and (b) the construct is important for successful job performance.
UGESP provides detailed guidance about each method of test validation.
If an employers integrity or personality test is shown to have a disparate impact based on a protected characteristic – such as sex in the above physical agility example – the employer must be able to show that the test is job-related and consistent with business necessity. Put another way, the company must show that the test it is necessary to the safe and efficient performance of the job. In deciding whether to adopt a hiring test, such as an integrity test, employers should make sure the test is associated with the skills needed to perform the job successfully. Validation under the UGESP guidelines sufficiently demonstrates the job-relatedness of the test.
However, even if employers can show that their test is job-related, it could still be discriminatory if a less discriminatory alternative would meet the company’s business need. As a result, employers should stay abreast of changes in job requirements and update testing specifications as new testing techniques are developed.
Takeaways in Implementing Integrity Tests
- Ensure that the integrity tests and other selection procedures are properly validated for the positions and purposes for which they are used.
- The test must be job-related and its results appropriate for your purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, employers are ultimately responsible for ensuring that the tests are valid under UGESP.
- If using the construct validation measure, define which personality trait is being measured and why it is important for successful job performance.
- If a selection procedure screens out a protected group, determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.
Hiring tests, such as integrity or personality tests, can be effective tools to screen applications for hire and promotion – and their popularity is increasing because technological advances make administering the tests and evaluating the results easier and faster. However, employers must still be careful when adopting such tests, as it is each employer’s own obligation to prove that their selection criteria do not have a disparate impact on certain groups and, further, that the test(s) are job-related, consistent with business necessity, and the least discriminatory alternative(s) available.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.