It’s difficult for employers to hire the right people into the right job.
Many employers take great effort to develop sound, consistent and objective hiring criteria through careful and individualized assessments of each position, and then execute those processes attempting legitimate and nondiscriminatory outcomes.
In doing so, employers frequently want to implement pre-hire testing to make sure that employees can perform the essential functions of the job.
CSX Corp., the Jacksonville, Fla., railroad company formerly based in Richmond, did all of this — carefully evaluated its jobs to determine the necessary skills, and then executed a process it believed was fair and consistent for the safe and efficient performance of certain jobs.
And after doing all of this, CSX agreed to pay $3.2 million in June for its testing program that had a demonstrable negative effect on hiring women.
CSX conducted what was called “isokinetic strength testing” to applicants hired into certain roles.
It implemented a strength test known as “IPCS Biodex” as well as two other physical tests which the federal Equal Employment Opportunity Commission claimed caused an unlawful discriminatory impact on female workers seeking certain positions.
The use of employment testing can increase the likelihood of hiring qualified candidates if the test is fully validated, and passage of the test is a requirement to successful job performance.
Employers can get caught up, however, in the development of the test, and administration and reliance on the testing where the selection process results in an adverse impact to a protected group.
In this case, the EEOC did not claim that CSX intended to discriminate against women. Even without discriminatory intent, federal law prohibits certain employment practices if the impact of those practices negatively affects race, gender, national origin, color or religion, all protected characteristics under Title VII of the Civil Rights Act.
Adverse impact occurs when the selection rate of one group is less than 80 percent of the selection rate of the comparable group.
In evaluating selection methods, employers can rely upon the Uniform Guidelines on Employee Selection Procedures, a 1978 regulation that established best practices for nondiscriminatory selection procedures.
Important components of nondiscriminatory selection procedures include full job analysis to determine the job needs, carefully selected criterion measures, validated testing procedures and properly applied operational use of selection procedures.
For example, one client evaluated the job of a customer service agent, and then purchased a validated testing tool for the specific job. The validated testing procedure used a cut-off score of 72.
However, the company was having difficulty finding applicants to score at least 72, so it arbitrarily lowered the pass rate to 67. With this pass rate, the company was able to find more successful candidates, but the process resulted in disparate impact of a racial minority.
The employer could not support its hiring practices because it arbitrarily lowered the pass rate. The validity study showed that a pass rate of 72 or greater resulted in successful performance of the job.
But by lowering the pass rate to below the validation, the employer’s testing became invalid and not legitimate.
Employers hiring large volumes of candidates should carefully assess all aspects of its hiring processes, from the initial selection decision to the interview process, questions asked and any additional testing or assessments.
Employers should evaluate disparate impact at each stage of the process to determine if the hiring process is resulting in a disparate impact on a protected group.
If so, the employer should consider whether an alternative selection method could result in the hiring of qualified candidates, but eliminate the disparate impact.