Considerations for Avoiding Discrimination in Selection Tests

Since the pandemic, many companies have turned to technology to help manage applicant flow and find ...

Posted by Carolyn Phillips Smith, M.Ed, SHRM-SCP on October 25 2022
Carolyn Phillips Smith, M.Ed, SHRM-SCP

Since the pandemic, many companies have turned to technology to help manage applicant flow and find qualified candidates quickly. On the surface, the use of testing potentially eliminates bias and selection discrimination by removing the “human factor” from the decision, however there are important factors to consider when choosing an applicant selection test to ensure qualified applicants are not being screened out.

Is the test specifically related to the job requirements?

Federal Contractors are required to periodically evaluate Mental and Physical Job Requirements to ensure qualification requirements do not screen out qualified individuals with disabilities or qualified disabled veterans for reasons that are not job related or consistent with business necessity and the safe performance of the essential functions of the job. A job requirement might be “The ability to lift 30lbs.” Ask, how heavy, exactly, is the item that needs to be lifted? Does the item have to be lifted continuously, or is it on an occasional basis? Could this requirement be met with an accommodation, like a tool or safety device? If the test measures the ability to lift 50lbs, but the job requirements say 30lbs, then consequently some qualified applicants are being screened out. As you review and revise your Mental and Physical Job Requirements, it is important to ensure the testing requirements are updated to measure only against the job requirements.

Does the test adversely impact a protected class?

Federal Contractors are required to review employment selections and determine if Adverse Impact exists. Adverse impact occurs when a decision, practice or policy has a disproportionately negative effect on a protected group. A pre-employment physical test may screen out female applicants who are unable to meet the lifting requirement. If the test screens out a statistically significant amount more women than men, then adverse impact is indicated. When a selection procedure adversely impacts a protected class, you will have to be prepared to defend your use of that test. Has the test been validated? Is the test measuring the requirements for the essential job duties? Does the test allow for Individuals with Disabilities to be accommodated? Is there another test that could be used which does not disproportionately affect the protected class?

Does the test consider the Uniform Guidelines on Employee Selection Procedures?

Although the Uniform Guidelines on Employee Selection Procedures is an older regulation, it is still the standard by which EEOC measures selection procedures. It is important to note that the UGESP defines a selection procedure as any measure or procedure used to make an employment decision, including interview questions. Did you verbally ask all of your applicants if they can lift 30lbs, or just the women? A seemingly innocuous question in an interview could lead to selection disparities. For more information regarding how OFCCP determines a selection procedure is subject to UGESP, and how selection disparities are identified and investigated, see the OFCCP FAQ page on Validation of Employee Selection Procedures


For Further Reading:

Berkshire Blog: 4 Steps to Calculating Your Adverse Impact

EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative

Carolyn Phillips Smith, M.Ed, SHRM-SCP
Carolyn Phillips Smith, M.Ed, SHRM-SCP
Associate HR Consultant

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