Applicant Tests: Legal and Ethical Considerations

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1. The company you work for is considering changing its applicant testing process. Your supervisor has asked you to address the following in a document that will be sent to other managers within the organization. Write a short essay discussing some of the legal and ethical considerations in testing.

The following information is about the legal and ethical considerations in testing. It is quite lengthy so you will probably have to be selective as what you want to include in the short essay. I will leave the document in its entirety, however, for you to decide.

I also left the links that are highly relevant to this assignment and really, provide everything that an employer would have to know about testing applicants. In the second part of this question, part of the ethical consideration is to choose a test that is reliable and valid, that it is administered according to the manual, etc.

Employers Guide to Good Practices:
- Personnel Assessment
- Laws and Regulations with Implications for Assessment
- Understanding Test Quality-Concepts of Reliability and Validity (ethics issue)
- Assessment Tools and Their Uses
- How to Select Tests-Standards for Evaluating Tests (ethics)
- Administering Assessment Instruments
- Using, Scoring, and Interpreting Assessment Instrument
- Issues and Concerns with Assessment (ethics?)
- A Review-Principles of Assessment

The number of laws and regulations governing the employment process has increased over the past four decades. Many of these laws and regulations have important implications for conducting employment assessment. This chapter discusses what you should do to make your practices consistent with legal, professional, and ethical standards.

Paper Highlights (please see attached response for hyperlinks)
1. Title VII of the Civil Rights Act (CRA) of 1964, as amended in 1972; Tower Amendment to Title VII
2. Age Discrimination in Employment Act of 1967 (ADEA)
3. Equal Employment Opportunity Commission (EEOC) - 1972
4. Uniform Guidelines on Employee Selection Procedures - 1978; adverse or disparate impact, approaches to determine existence of adverse impact, four-fifths rule, job-relatedness, business necessity, biased assessment procedures
5. Title I of the Civil Rights Act (CRA) of 1991
6. Americans with Disabilities Act (ADA) - 1990
7. Record keeping of adverse impact and job-relatedness of tests
8. The Standards for Educational and Psychological Testing - 1985; The Principles for the Validation and Use of Personnel Selection Procedures - 1987
9. Relationship between federal, state, and local employment laws.

Principles of Assessment Discussed:

Use only assessment instruments that are unbiased and fair to all groups.
The general purpose of employment laws and regulations is to prohibit unfair discrimination in employment and provide equal employment opportunity for all. Unfair discrimination occurs when employment decisions are based on race, sex, religion, ethnicity, age, or disability rather than on job-relevant knowledge, skills, abilities, and other characteristics. Employment practices that unfairly discriminate against people are called unlawful or discriminatory employment practices.

The summaries of the laws and regulations in this chapter focus on their impact on employment testing and assessment. Before you institute any policies based on these laws and regulations, read the specific laws carefully, and consult with your legal advisers regarding the implications for your particular assessment program.

1. Title VII of the Civil Rights Act (CRA) of 1964 (as amended in 1972); Tower Amendment to Title VII

Title VII is landmark legislation that prohibits unfair discrimination in all terms and conditions of employment based on race, color, religion, sex, or national origin. Other subsequent legislation, for example, ADEA and ADA, has added age and disability, respectively, to this list. Women and men, people age 40 and older, people with disabilities, and people belonging to a racial, religious, or ethnic group are protected under Title VII and other employment laws. Individuals in these categories are referred to as members of a protected group. The employment practices covered by this law include the following:
- recruitment transfer
- performance appraisal
- disciplinary action
- hiring training
- compensation
- termination
- job classification
- promotion union or other membership fringe benefits.

Employers having 15 or more employees, employment agencies, and labor unions are subject to this law.
The Tower Amendment to this act stipulates that professionally developed workplace tests can be used to make employment decisions. However, only instruments that do not discriminate against any protected group can be used. Use only tests developed by experts who have demonstrated qualifications in this area.

2. Age Discrimination in Employment Act of 1967 (ADEA)

This Act prohibits discrimination against employees or applicants age 40 or older in all aspects of the employment process. Individuals in this group must be provided equal employment opportunity; discrimination in testing and assessment is prohibited. If an older worker charges discrimination under the ADEA, the employer may defend the practice if it can be shown that the job requirement is a matter of business necessity. Employers must have documented support for the argument they use as a defense.

ADEA covers employers having 20 or more employees, labor unions, and employment agencies. Certain groups of employees are exempt from ADEA coverage, including public law enforcement personnel, such as police officers and firefighters. Uniformed military personnel also are exempt from ADEA coverage.

3. Equal Employment Opportunity Commission (EEOC)-1972

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination, including Title VII, the U. S. Environmental Protection Agency (EPA), the ADEA, and the ADA. It receives, investigates, and processes charges of unlawful employment practices of employers filed by an individual, a group of individuals, or one of its commissioners. If the EEOC determines that there is "reasonable cause" that an unlawful employment practice has occurred, it is also authorized to sue on behalf of the charging individual(s) or itself. The EEOC participated in developing the Uniform Guidelines on Employee Selection Procedures.

4. Uniform Guidelines on Employee Selection Procedures-1978; adverse or disparate impact, approaches to determine existence of adverse impact, four-fifths rule, job-relatedness, business necessity, biased assessment procedures

In 1978, the EEOC and three other federal agencies-the Civil Service Commission (predecessor of the Office of Personnel Management) and the Labor and Justice Departments-jointly issued the Uniform Guidelines on Employee Selection Procedures. The Guidelines incorporate a set of principles governing the use of employee selection procedures according to applicable laws. They provide a framework for employers and other organizations for determining the proper use of tests and other selection procedures. The Guidelines are legally binding under a number of civil rights laws, including Executive Order 11246 and the Civil Rights Requirements of the National Job Training Partnership Act and the Wagner Peyser Act. In reviewing the testing practices of organizations under Title VII, the courts generally give great importance to the Guidelines' technical standards for establishing the job-relatedness of tests. Also, federal and state agencies, including the EEOC, apply the Uniform Guidelines in enforcing Title VII and related laws.

The Guidelines cover all employers employing 15 or more employees, labor organizations, and employment agencies. They also cover contractors and subcontractors to the federal government and organizations receiving federal assistance. They apply to all tests, inventories and procedures used to make employment decisions. Employment decisions include hiring, promotion, referral, disciplinary action, termination, licensing, and certification. Training may be included as an employment decision if it leads to any of the actions listed above. The Guidelines have significant implications for personnel assessment.
One of the basic principles of the Uniform Guidelines is that it is unlawful to use a test or selection procedure that creates adverse impact, unless justified. Adverse impact occurs when there is a substantially different rate of selection in hiring, promotion, or other employment decisions that work to the disadvantage of members of a race, sex, or ethnic group.

Different approaches exist that can be used to determine whether adverse impact has occurred. Statistical Techniques may provide information regarding whether or not the use of a test results in adverse impact. Adverse impact is normally indicated when the selection rate for one group is less than 80% (4/5) that of another. This measure is commonly referred to as the four-fifths or 80% rule. However, variations in sample size may affect the interpretation of the calculation. For example, the 80% rule may not be accurate in detecting substantially different rates of selection in very large or small samples. When determining whether there is adverse impact in very large or small samples, more sensitive tests of statistical significance should be employed.

When there is no charge of adverse impact, the Guidelines do not require that you show the job-relatedness of your assessment procedures. However, you are strongly encouraged to use only job-related assessment tools.

If your assessment process results in adverse impact, you are required to eliminate it or justify its continued use. The Guidelines recommend the following actions when adverse impact occurs:
- Modify the assessment instrument or procedure causing adverse impact.
- Exclude the component procedure causing adverse impact from your assessment program.
- Use an alternative procedure that causes little or no adverse impact, assuming that the alternative procedure is substantially equally valid.
- Use the selection instrument that has adverse impact if the procedure is job related and valid for selecting better workers, and there is no equally effective procedure available that has less adverse impact.

Note: That for the continued use of assessment instruments or procedures that cause adverse impact, courts have required justification by business necessity as well as validity for the specific use. The issue ...