INTRODUCTION - This document was prepared in conjunction with Hire Success' legal counsel to provide information regarding the often asked question: "Is the use of pre-employment testing legal?" and in particular, "Are the HIRE SUCCESS™ Personality and Aptitude Tests Legal?"

We encourage each employer considering this issue to seek professional legal counsel, as this document is not meant to express any legal opinion or position, rather it was written to provide factual information which each employer should consider and discuss with their own legal counsel.

The foundation for this question certainly goes back to Title VII of the Civil Rights Act of 1964, and to a very important case in 1971 argued before the United States Supreme Court known as GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971). 

Much has been written about the legality of employment screening tests, especially by some companies involved in the development and sale of pre-employment tests.  In many of these cases, the test vendors assert that their test is legal, but tests from their competitors may NOT be legal and thus might place the employer "in harms way". 

Because so much "misinformation" has been distributed, especially via the Internet, our objective is to try to present the following facts which we believe should be considered before selecting any testing system, but with particular emphasis on the HIRE SUCCESS™ Personality and Aptitude Tests.

HIRING EMPLOYEES WITHOUT TESTING - An important case you may wish to discuss with your legal counsel is WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988).  This case involved a charge of discrimination when NO testing was involved.  The Supreme Court's opinion was that:

"…an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices (interviews) with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge."

 In a further conclusion in this case, the Court went on to say that employers do not need to prove 'validation studies' that are predictive of job success when it said: 

"The nature of the 'business necessity' or 'job relatedness' defense - under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case - also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a 'manifest relationship to the employment in question.'"

We also believe the statement went on to speak of tests like the Hire Success™ Personality Profile which does NOT test aptitude, intelligence or skills when it said: 

"Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing but are nevertheless job related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices and therefore should not attempt to do so. Pp. 997-999."

APPLICABILITY WITHOUT TESTING - GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971) has played a pivotal role in how employers look at testing applicants and employees.  The first step is to understand the scope of this particular decision and what was alleged in the lawsuit.  The following is from the first paragraph of the Supreme Court's opinion:

 "Negro employees at respondent's generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent's requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While 703 (a) of the Act makes it an unlawful employment practice for an employer to limit, segregate, or classify employees to deprive them of employment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, 703 (h) authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate."

 The issue being addressed in this case was brought about because it was believed that the use of "intelligence tests" were being used as a tool to discriminate against a protected group under Title VII of the Civil Rights Act of 1964 (the "Act").  The issue of testing for "personality" was not the issue, rather only "intelligence".  The Hire Success™  Personality Profile does not take age, race, gender, or any other protected element, into consideration in the development of the Personality Profile and uses no measure, or means to measure, "intelligence" as part of determining a person's personality.

 A further indication that the Hire Success™ Personality Profile is not a discriminatory tool, is  the personality evaluation and results are based exclusively on data provided by the self-analysis of the person whose personality is being evaluated.  Thus, the applicability of the input data is solely dependent on the accuracy and truthfulness of the person taking the test.  Because no information regarding the person's age, race or education is considered in the computer software performing the test analysis, it would be impossible for the computer to discriminate against any legally protected group of people.

 Aptitude tests developed for the Hire Success™ system, which measure a person's knowledge of a particular subject, could be interpreted by some as a test of "intelligence", and thus could be construed as being relevant to Griggs vs. Duke Power.  However, the Court's opinion stated "…703 (h) authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate."

 Each of the Hire Success™ Aptitude tests have been professionally developed in conjunction with individual(s) who have considerable expertise in the area being tested.  In particular, tests related to academic levels, which could most easily be construed as a test of intelligence, were developed by an individual holding a Doctorate degree in education and who used standardized "Scope and Sequence" charts to develop grade-specific questions which range from the 4^th to 14^th grade level.  We believe the development of the Hire Success™ Aptitude tests meet the criteria set forth in 703 (h) of the Act and the Supreme Court's ruling in this case.

EEOC GUIDELINES - The Equal Employment Opportunity Commission (EEOC) Guidelines must also be taken into account, as they were considered in the Supreme Court's ruling from Griggs vs. Duke Power on this matter.  Footnote 9 stated:

 EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets `professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII." The EEOC position has been elaborated in the new Guidelines on Employee Selection Procedures, 29 CFR 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970). These guidelines demand that employers using tests have available "data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Id., at 1607.4 (c).

Again, the Hire Success™ Personality Profile is not "ability-based" and is not designed to "measure the applicant's ability" in any way.   Rather, the Personality Profile reflects applicant "traits" based on the applicant's own self-measurement of 100 characteristics.  Therefore, if the applicant, for example, described him/herself as not being very detail oriented, the "trait" may be important to the employer, even though the applicant may have an outstanding "ability" in the area of mathematics.   If the job for which the applicant was applying was an accounting position, the ability and knowledge of math, although very important, may not be sufficient if many mistakes are made because the person lacks the detail orientation necessary.

If key traits are identified (refer to "Proper Use of Employment Testing" below), they represent another "facet" of the applicant's overall job makeup that is complementary to "ability" if it further enhances that ability to be successful on the job.

The Aptitude test(s), must be evaluated as a different type of tool than the Personality Profile, as the Aptitude test(s) are a way to measure an applicant's "ability".  As indicated in the EEOC Guidelines, it is not sufficient that the test be professionally developed, it must ALSO be relevant and predictive to the success of the job.  Thus, each employer must thoroughly examine all of the questions on ANY aptitude test to make sure it is testing for abilities related to the job being considered, and are indicative (predictive) of success for that job based on the outcome of having validated that test with that job within the company administering the test. 

This is why each employer should evaluate carefully how various tests are administered.  It would no doubt be easy to show that a math test was important for an accounting position, but perhaps the math or vocabulary test may be irrelevant to operate a fork-lift in the warehouse or be on the housekeeping staff at a hotel.  Only those tests relevant to the position, and that are predictive of success on the job, should be administered.  Further, these tests should always be administered to all qualified candidates in a non-discriminatory manner.

HELD IN GRIGGS vs. DUKE POWER - 

The following two elements were upheld by the Supreme Court in the case of Griggs vs. Duke Power, and should be considered before using any pre-employment test.

1.      "The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent. Pp. 429-433."  

2.      "The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless [401 U.S. 424, 425] they are demonstrably a reasonable measure of job performance. Pp. 433-436."

PROPER USE OF EMPLOYMENT TESTING - The position of Hire Success™ is that if any of our tests are to be used as a pre-employment testing tool, that the following procedures should be followed by each employer administering the tests:

1.      Test ALL applicants who apply for a particular job and meet all other minimum requirements for the job.  The application of the test should NOT be used selectively as a means for either justifying a candidate when another has not had the opportunity to take the test(s), or to adversely effect someone who has taken the test(s) in favor of another applicant who was not required by the employer to take the same test(s).

We are not suggesting that all applicants must be tested if they are not otherwise qualified.  For example, if an applicant for a chemical engineering position had no education, background or experience in chemistry, and having that background was a job requirement, we do not believe it would be necessary to provide them with other pre-employment tests as they would be disqualified by some other means.  We ARE, however, suggesting that all employees, regardless of race, age, education, etc., who share similar qualification for the job MUST be offered the same opportunity to take the pre-employment test(s).

2.      Each test that will be administered in a pre-employment environment by an employer should be administered to employees currently holding the same or similar position, especially with the employer administering the test, in order to establish a "baseline" from which to compare test results of job applicants.  We believe that developing this "baseline" information, if done fairly and properly, will meet the criteria in number two above prescribing "… giving them controlling force unless they are demonstrably a reasonable measure of job performance.".

What will be important is to identify the job-related attributes available with a particular test and apply the test results fairly using that data as a consideration for employment.

Chief Justice Burger said, in the delivery of the Court's opinion that "… Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. [401 U.S. 424, 433]"

Hire Success™ believes this pivotal point is why it is so important that each employer use each tool responsibly and test existing employees, where possible, to develop valid "baseline" criteria.  For example, if a Company was hiring for a sales position selling ads in a local magazine, the Company may be easily able to determine that the most successful sales people in their company may have a particular primary personality type and have strong traits in areas like "Persuasiveness", "Extroversion", "Independence", "Aggressiveness", etc.  However, if it can not be established that it is important to the job to be literate in computer terminology, then administering the computer knowledge aptitude test would not have the "manifest relationship" to the job and thus using that test in a pre-employment environment would be inappropriate.

If, however, the person was hired and later applied for a different job within the company where computer knowledge WAS important to the successful completion of the job, then administering the test when considering people for promotion, transfer or another job would be appropriate.

Chief Justice Burger's concluding statement from Griggs vs. Duke Power when delivering this opinion was: "Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract."

 We believe the Hire Success™ Personality and Aptitude tests are a valid and accurate tool for measuring the person for the job and not in the abstract, and thus provides employers with an efficient, simple, accurate and cost-effective tool for general employment testing.

THE 80/20 RULE - Most people have probably heard how the "80/20 rule" applies to many things. For example, it is often said that "80% of the sales are made by 20% of the sales force", "80% of the problems are caused by 20% of the people", etc.  There is a similar 80/20 rule that is applied to employment testing to assure that a test is not discriminatory.

Using a reasonable sample size, minority groups must pass a test at LEAST 80% as often as majority groups.  For example, if a math test were administered to accounting candidates, and say 60% of white male candidates passed the math test, at least 48% or more of minority candidates must also pass the test in order for the test to be considered non-discriminatory.

Therefore, employers will want to keep data about test applicants which includes at least race and gender information, in order to show that their tests do not have "adverse impact" in minorities.

THE CIVIL RIGHTS ACT OF 1991 - In 1989, the Supreme Court effectively reversed the impact of Griggs vs. Duke Power in another case: WARDS COVE PACKING CO. v. ANTONIO, 490 U.S. 642 (1989). The Civil Rights Act of 1991 (CRA-91) simply revived the concepts of "business necessity" and "job related" as determined by the Supreme Court in Griggs vs. Duke Power.

The CRA-91 also has an impact on pre-employment testing.  Even where the employer demonstrated "business necessity," the challenged practice may still be unlawful if the plaintiff demonstrates that an "alternative employment practice" with less disparate impact exists and the employer has refused to adopt the same.

Because there ARE situations where "business necessity" does mean a discriminatory practice must be employed, then it is important that the employer select an alternate practice that accomplishes the same purpose but has less adverse impact. 

Hire Success™ believes its Personality Profile provides employers with an alternate practice of determining job-related traits which are not related to any protected class.  The tool is a self-assessment by the applicant and thus simply provides the employer with direct feedback from the applicant in these various trait evaluations in an objective and consistent manner, both key elements toward fair, impartial and non-discriminatory hiring practices.

NOTICE: This Document may not be copied or reprinted in any fashion without the express written consent of Hire Success.  It is provided for information purposes only and is not expressing a legal opinion or giving legal advise.  All parties interested in the legal aspects of employment testing should contact a reputable attorney in their area.

For More Information, Please Contact:
HIRE SUCCESS™
CALL TOLL FREE:
1-877-582-TEST (8378)
Or in the Indianapolis area:
(317) 848-7966

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