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Recruitment and Appraisal of Applicants in Employment
Federal Statutory Regulation and State Employment Law Regulation
If applicants are denied access to employment opportunities on the basis of membership in a
protected class, they may have a claim against the potential employer for discriminatory
practices. Statutes governing the recruitment process require that an employer not only recruit
from a diverse audience, but also design employment announcements so as to encourage a
diverse group of applicants. Where the employer utilizes recruitment practices which result in
an adverse impact upon a group protected by anti-discrimination statutes that practice may be
wrongful even if the employer had no intent to discriminate.
Common Law Regulation of Recruitment
Misrepresentation: A company representative who makes an intentional or negligent
misrepresentation which encourages an applicant to take a job may be liable to that applicant for
harm which results. Misrepresentations may include claims regarding the terms of the job offer,
including the type of position available, the salary to be paid, the job requirements, and other
matters directly relating to the representation of the offer.
To be actionable, the applicant must show that the employer misrepresented a material fact –
either intentionally or with recklessness as to its truth or falsity – that the applicant reasonably
relied on this representation in arriving at the decision to accept the offer, and that she or he was
damaged by this reliance.
The misrepresentation need not actually be a false statement; where a statement creates a false
impression, the employer may also be liable for fraud.
Where the employer is aware that the applicant is under a mistaken belief about the position or
the company, the employer's silence may constitute misrepresentation. Where the employer hides
certain bits of information, the employer's silence may again be considered misrepresentation.
Fraud
Employers may also be liable for fraud in recruitment when misstatements are used to discourage
potential applicants from pursuing positions.
Application of Regulation to Recruitment Practices
Advertisements The employer must insure that advertisements do not discourage any eligible
applicants from applying (such as only encouraging young applicants, as in scenario one), that
they are honest about what is required for the position, and that they are disseminated to a broad
variety of potential applicants (i.e. one cannot merely advertise in newspapers that are distributed
only to certain groups).
Word-of-Mouth Recruiting
Generally most people know and recommend others similar to themselves. Word of mouth
recruiting generally results on a homogeneous work place. This type of recruiting is not
necessarily harmful where precautions are taken to ensure a balanced applicant pool or where it
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is necessary for insuring hire of the safest and most competent workers.
Benefits to this type of recruitment include the preliminary screening accomplished by the
current employees before they even recommend the applicant for the position and the propensity
for long term service and loyalty among the new hires. Since they already have bonds to the
company, a family attitude toward the firm resulting in increased productivity is more easily
developed. The practice is only subject to suspicion if it results in adverse impact against
members of protected classes.
Of course, if the employer is a member of an ethnic community, especially an immigrant one,
this stance is likely to result in the perpetuation of an ethnically imbalanced workforce.
Discrimination is not preference or aversion; it is acting on the preference or aversion. If the
most efficient method of hiring adopted because it is the most efficient, just happens to produce a
workforce whose race pleases the employer, this is not intentional discrimination.
Nepotism
Nepotism is the practice of hiring members of the same family; and some employers rely on this
to locate the most appropriate candidates. This practice may result in homogeneity, as the
company becomes a conglomerate of a number of homogeneous families, with greater likelihood
of discrimination resulting from a disparate impact.
Nepotism policies are not, per se, illegal. When an employee or applicant challenges the policy,
the court will determine whether it has an adverse impact on a protected class. If so, it will be
found illegal unless the employer has a strong justification in favor of its business necessity.
An anti-nepotism policy (one which states that the company will not hire family members) may
also be discriminatory where it is not applied across the board.
Courts have consistently upheld general anti-nepotism policies which provide that the company
will not hire the spouse of a current employee, as long as there is no evidence of disparate
impact, or the policy applies to employees at all levels of employment.
Promoting From Within
While promoting from within the company is not in and of itself, illegal, it also has the potential
for discriminatory results, depending on the process used and the make-up of the workforce.
Closed processes where a present employee is identified and offered the open position may cause
problems. Employers are less likely to have problems with hiring if they post a notice of
position availability in which all employees are offered the opportunity to compete for open
positions. The employer is less vulnerable to attack for discriminatory policies as long as the
workforce is relatively balanced so that there is equal employment opportunity.
Venue Recruiting
Employers may decide to conduct recruiting at a university or high school. Similar precautions
must be taken in order to attract diverse applicants in a locale which may be either purposefully
or unintentionally uniform. The same effect may result when an employer recruits with a
preference for experienced applicants for entry-level jobs.
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Walk-in Applicants
While this strategy may be effective in locating employees and reducing costs of actual formal
recruiting, the company may find that its reputation attracts only one type of employee, while
others are intimidated by, unaware of or uninterested in the firm.
Neutral solicitation
Neutral solicitation refers to the actual advertisement and the types of people who may be
encouraged to apply. While selecting an appropriate source from which to choose applicants is
crucial, it is also important to fashion the process to encourage diverse applicants. The
announcement or solicitation should invite applications from all groups and should not suggest a
preference for any one class of individual.
Resume Collection Concerns
Since applicants acquire certain rights simply by virtue of being “applicants,” it is crucial to
control the processing of applications. Once an application is received, federal employers or
contractors have a duty to keep records and collect information regarding compliance with
selection or affirmative action requirements and other obligations. Other employers should
retain this information as well, since (1) some statutes have record-keeping requirements, such as
the Age Discrimination in Employment Act, and (2) one of the ways to refute an applicant’s
claim of discrimination is through statistical analysis of the applicant pool.
Applicant is not defined by any of the enforcement bodies such as the EEOC or the Department
of Justice. It is a good idea for employers to define the term for purposes of possible litigation.
Preferential Treatment
Preferential treatment, or more generally affirmative action, may be required by federal law,
depending on the employer, the number of employees and the type of position available. The
difference between preferential treatment and affirmative action, as those terms are used in this
section, is that preferential treatment means simply a preference offered to members of a certain
class that is not offered to members of other classes; affirmative action provides for the most
equal opportunity possible to members of various groups which have historically not been
provided equal opportunity, and may include preferential treatment to education programs,
referral services, pre-employment preparation or training for certain groups.
Title VII does not require that preferential treatment be given to any specific protected class. In
fact, the statute states that preferential treatment can not be used to remedy the existing numbe r
or percentage imbalance of a protected group. However, if a protected group has been
discriminated against by the employer, the employer can consider an individual’s status as a
factor in its hiring decision. Title VII states:
Nothing in this title shall be interpreted to require any employer . . . to grant preferential
treatment to any individual or to any group because of the race, color, religion, sex or national
origin of such individual or group on account of an imbalance which may exist with respect to
the total number or percentage of persons of any race, color, religion, sex or national origin
employed . . . in comparison with the total number or percentage of any persons of such race,
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color, religion, sex or national origin in any community, . . .
The Rehabilitation Act of 1973 prohibits discrimination against handicapped persons under
certain conditions. Covered employers include those who have a contract with the federal
government of over $2,500.00, employers who receive federal funds, such as colleges, states and
municipalities. The Rehabilitation Act requires affirmative action programs for the employment
of disabled employees, though not specifically preferential treatment. The act distinguishes
between small federal contractors with between $2500 and $50,000 contracts and those with
contracts of $50,000 or more. Small contractors must simply post notices of the obligation to be
nondiscriminatory in hiring while the large employer must maintain a more specific written
action plan.
The Vietnam Era Veterans' Readjustment Assistance Act of 1974 provides that government
contractors with contracts of $10,000.00 or more must undertake affirmative action programs for
the purpose of employing and advancing disabled and qualified veterans who were on active
duty between August 5, 1964, and May 7, 1975. As with the Rehabilitation Act, above, large
employers must maintain a more specific written action plan.
Executive Order 11246, as amended, regulates the activities of those who have contracts of
$10,000.00 or more with the federal government. The Order was signed before Title VII was
enacted and requires similar employment actions; i.e., the Order prohibits a covered employer
from basing any employment decision upon race, color, religion, sex or national origin.
Contractors with contracts of over $50,000 must design and implement affirmative action
programs whenever women or minorities are underutilized, or under represented, in the work
force. Under-utilization is defined as “having fewer minorities or women in a particular job
group than would reasonably be expected by their availability.” The plan must also establish
timetables for elimination of the disparity and address the satisfaction of these goals in the
program.
The Civil Service Reform Act of 1978 provides that all federal government agencies implement
programs designed to create “a federal work force reflective of the Nation’s diversity.” This
general statement of intent provides the basis for involuntary affirmative action programs
discussed in the affirmative action chapter.
Information Gathering and Selection
The Application Process
Under most circumstances, the application requests information which will serve as the basis for
later screening out applicants because of education or experience requirements. Questions which
are business-related and used for a nondiscriminatory purpose are appropriate. Various types of
information which may appear innocuous but may have problematic results. Asking for an
applicant’s name, for instance, may be a problem. The applicant with a surname which is related
to a protected group may argue that she or he was denied a position because of presumed
membership in that group. While the firm may not have made a decision on that applicant on the
basis of her or his name, now the firm must justify the decision not to hire him or her. Where no
name is asked, or where the applicant’s names are removed from the applications prior to the
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decision-making process (and numbers are used instead, for instance), then the employer’s
decision is subject to less scrutiny.
There are only a few questions that are strictly prohibited from being asked on an application and
during the interview process by federal law. Any questions concerning disability, specific health
inquiries, and worker’s compensation history are prohibited by the Americans with Disabilities
Act of 1990.
Questions regarding to age, sex, religion, marital status, nationality, and ethnicity are not
prohibited by federal law but they are dangerous. Questions relating to these areas must be
related to the position for which the applicant applies in order for an employer to be able to ask
such questions.
Even if the employer does not base its employment decision on the responses of these inquiries,
where the selection process results in a disparate impact against a protected group, the employer
could be liable.
The Interview
Discrimination may occur during the interview in the same manner in which it is present on
application forms. If it would be improper to ask a question on the application, it just as
improper to ask for the same information in an interview.
Discrimination during the interview may occur not only through questions but also through the
way in which the applicants are treated. Be certain to insure that all applicants receive the same
type of treatment during the entire process.
There are four problem areas in connection with the interview.
First, the employer must ensure that the interview procedures do not discourage
women, minorities or other protected groups from continuing the process.
Second, employers should be aware that all-white or all-male interviewers, or
interviewers who are not well trained, may subject the employer to liability.
Third, training of the interviewers is crucial in order to avoid biased questions,
gender-based remarks, and unbalanced interviews.
Fourth, the evaluation of the applicant subsequent to the interview should follow a
consistent and evaluative process rather than reflect arbitrary and subjective opinions.
Background or Reference Check, Negligent Hiring
The more responsibilities a position has, the more likely it is that the employer will verify all of
the qualifications the applicant has listed on her or his application, such as experience and
education. It is important, as well, to insure that there is no undiscovered information which
would disqualify the applicant from employment or which may subject other employees, clients
or customers to a dangerous situation and the employer to a claim of negligent hiring. An
employer is liable for negligent hiring where an employee causes damage which could have been
prevented if the employer had conducted a reasonable and responsible background check on the
employee.
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In order to state a claim for negligent hiring, the plaintiff must show:The existence of an employer/employee relationship;
The employee’s incompetence or inappropriateness for the position assumed;
The employer’s actual or constructive knowledge of such incompetence or
inappropriateness, or the employer's ability;
That the employee’s act or omission caused the plaintiff’s injuries; and
That the employer’s negligence in hiring or retaining the employee was the proximate
cause of the plaintiff’s injuries (i.e. upon investigation, the employer could have
discovered the relevant information and prevented the incident from occurring).
The amount of background and reference checking necessary in order to be shielded from a
claim of negligent hiring varies from situation to situation. A position which provides for
absolutely no contact with clients, customers or other employees may necessitate a quick check
of the information contained on the application, while a position which requires a great deal of
personal contact would require an investigation into the applicant's prior experiences, etc.
An employer must exercise reasonable care in hiring applicants who may, as a result of their
employment and the employer's negligent failure to obtain more complete information, pose a
risk to others. The standard of care to be met is that which would be exercised by a reasonable
employer in similar circumstances. If an employer had no means by which to learn of a
dangerous propensity, or if discovery of this information would place a great burden on the
employer, a court is more likely to deny a claim for negligent hiring.
Checking on References
In order to carefully and adequately check on an applicant's references, the employer has several
options. First, the employer may contact the reference in person, by telephone or by letter and
request a general statement as to whether the information stated in the
application/interview is correct.
Second, the contact might be much more specific, posing questions regarding the
applicant's abilities and qualifications for the available position.
Third, the employer may undertake an independent check of credit standing through a
credit reporting agency, military service and discharge status, driving record, workers'
compensation record, criminal record or other public information in order to obtain
the most complete information on the applicant.
There are problems inherent in each form of query. Most employers are willing to verify the
employment of past employees, but obtaining this limited information may not necessarily
satisfy the standard of care required to avoid a claim of negligent hiring.
Certain information is not available to employers and protected by state law. For instance, if an
employer asks about the applicant's prior criminal arrest record, or even certain convictions, in
one of several states which statutorily protect disclosure of this type of information, the employer
may be subject to a claim of invasion of privacy or other statutory violations.
There may also be the basis for a claim of disparate impact where it can be shown that those of
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one protected class are arrested more often than others. In that case, asking about an arrest
record where the offense is not necessarily related to job performance may result in adverse
impact. Note that arrests and convictions are not the same. Employers are more limited in
inquiring about arrest records than convictions relevant to the job.
The Fair Credit Reporting Act requires that an employer notify the applicant in writing of its
intention to conduct an investigative consumer report, and inform the applicant of the
information which it seeks. It further requires the employer to obtain written authorization to
obtain the report.
The reference and background information gathering process is a lengthy one and may be
unmanageable given the employer's position requirements.
Employers may not be willing to offer any further information than that the applicant worked at
that company for a period of time. Employers have cause for concern given the large number of
defamation actions filed against employers based on references.
The most effective means by which to avoid this potential stumbling block is to request that the
applicant sign a statement on the application form which states that former employers are
released from liability for offering references on her or his behalf. In the course of making a
request for a reference from those former employers, the release should be sent to the former
employer along with a copy of the applicant's entire application.
Reference Checks: Potential Liability for Providing References
Various states have passed some form of law relating to reference checks or a general statutory
privilege making employers immune from liability when giving information regarding a former
employer unless the claims made were false or the employer did not act in good faith. Some of
the states that have such laws include California, Georgia, Illinois, Oklahoma, and West
Virginia.
However, this protection does not go so far as to protect an employer who issues a negative
reference in retaliation for a Title VII claim by a former employee. For example, in Robinson v.
Shell Oil Company, 519 U.S. 337 (1997), a former employee claimed his employer had given a
negative reference to a prospective employer because he had filed a charge of race discrimination
with the EEOC after he was terminated. The Supreme Court ruled that former employees have
the same right as current employees to sue on grounds that they were retaliated against for
exercising their Title VII rights.
Due to an increasing risk of lawsuits as a result of reference checks, many employers have
adopted an official policy of providing only name, position held, and salary. However,
employers should be aware, that should an employer choose not to provide reference information
on prior employees they could be facing lawsuits and liability from the new/prospective
employer. In one case, a former employer settled for an undisclosed amount after allegedly
sending an incomplete referral letter that neglected to mention that the former employee had
been fired for bringing a gun to work. The employee was subsequently hired by an insurance
company and went on a rampage, killing three and wounding two of his co-workers, before
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killing himself.
While employers may not have an affirmative duty to respond to a reference inquiry, those who
choose to respond may be held liable for negligent misrepresentation based on misleading
statements made in employment references. In Randi W. v. Muroc Joint Unified School Dist., 14
Cal. 4th 1066 (1997), the California Supreme Court reviewed a claim brought by former junior
high school student who had been molested by the vice-principal. The vice-principal had
received glowing recommendations from his former employers, including the Muroc School
District that spoke of his “genuine concern” for students. Nevertheless, administrators at these
other school districts knew that this former employee had been the object of complaints and
discipline regarding sexual harassment of their students.
The California Supreme Court found that a former employer owed a duty of care to third parties
in making representations regarding a former employee’s character and qualifications that
present a substantial, foreseeable risk of physical injury to third persons. While emphasizing that
there is no affirmative duty to respond to requests for references, the court recognized a duty to
respond fully and honestly after voluntarily undertaking to provide such references to avoid such
foreseeable harm. The court held on the facts of the case that the former employers were liable
for misrepresentations or nondisclosures in their employment references. The California
Supreme Court found that a former employer owed a duty of care to third parties in making
representations regarding a former employee’s character and qualifications that present a
substantial, foreseeable risk of physical injury to third persons. While emphasizing that there is
no affirmative duty to respond to requests for references, the court recognized a duty to respond
fully and honestly after voluntarily undertaking to provide such references to avoid such
foreseeable harm. The court held on the facts of the case that the former employers were liable
for misrepresentations or nondisclosures in their employment references.
One possible safeguard an employer can utilize is requiring written release from former
employees before any information is released. However, the release should be voluntary with
the former employer having an opportunity to discuss with an attorney and should include the
employee’s agreement not to contest either his or her termination or the contents of the personnel
file.
Employer liability in connection with reference checks can also arise in an unexpected manner –
from an ex-employee’s own mouth through compelled self-publication. Compelled self-
publication occurs when an ex-employee is forced to repeat the reason for her or his termination.
When the reason for the termination is allegedly defamatory (for instance, termination based on
false accusations of insubordination or theft), then courts have held that self-publication can
satisfy the prima facie requirements of defamation since the employee was compelled to publish
the defamatory statement to a third person (the potential new employer), and since it was
foreseeable to the employer that the employee would be so compelled to repeat the basis for
termination.
The tort of compelled self-publication, however, is only recognized in a minority of states.
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After-acquired evidence use in defense in wrongful termination suits
The effective and thorough gathering of information during the selection process offers the best
protection against negligent hiring, or simply wrong hiring decisions. If an employer makes a
wrong decision in hiring an employee who is then terminated, the employer may also be able to
depend on the information gathered during the hiring process to either limit or preclude liability
for wrongful termination.
A 1995 Supreme Court decision, McKennon v. Nashville Banner Publ. Co., 513 U.S. 352 (1995),
addresses this issue. Often after acquired evidence is relevant when someone suffers an adverse
employment action, after which the employer finds additional evidence of another, allegedly
cause for the adverse action. The court held that this later acquired evidence is admissible to
show that, whether or not the original reasons for the action were lawful, it also had legal
justification based on this new evidence.
In that case, though the original termination violated the ADEA, the termination was upheld
when later evidence uncovered a breach of confidentiality that would have justified the
termination.
Uniform Guidelines on Employee Selection Procedures
The Uniform Guidelines on Employee Selection Procedures were enacted in 1978 in an attempt
to assist employers to comply with Title VII. The Guidelines provide a framework for
determining the proper use of tests and other selection procedures.
The Four-Fifths Rule
The Guidelines are based on the concept that any selection procedure which results in a disparate
impact will be considered discriminatory. The Guidelines therefore attempt to offer a benchmark
for whether adverse impact exists. Disparate impact is said to exist where a selection rate for any
protected class is less than 80% of the rate for the group with the highest rate of selection (the
“four-fifths rule”).
Test validation
The most significant aspect of the Guidelines relating to testing is that there is no requirement to
validate the tests where no adverse impact results or has been shown. A considerable portion of
the Guidelines relates to the validation of selection instruments.
Test of least Impact
In addition, where two or more selection procedures are available which serve the employer's
legitimate interest in an efficient and trustworthy manner, and which are substantially equal for
their stated purpose, the employer is directed to use the procedure which has been shown to have
a lesser adverse impact.
Documentation of Failure to Hire
No federal statute or guideline requires that employers document the reasons for failing to hire
any specific applicant. However, it may be in the best interests of the employer to articulate the
reasons in order to avoid the presumption of inappropriate reasons.
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In addition, since a claim under Title VII or other statutes may come long after the decision was
made, documentation will help an employer recall the particular reasons why a certain applicant
was rejected so that she or he is not left, perhaps on the witness stand, to say “I don't remember!”
Also, the individuals who originally made the decision about this candidate may no longer be
with the firm.
A firm may choose to document in order to supplement statistical data proving a lack of
discrimination. This paper trail may serve to prove that others who were similarly situated were
treated the same way, not differently.
On the other hand, documentation may also serve to demonstrate facts to which the employer
does not want to be bound. Once the reason for failing to hire is on paper, the employer is now
bound to use that, alone, as the reason for the decision. Further, while any one decision may
seem appropriate, systematic documentation of these decisions may demonstrate a pattern of
adverse impact that one might not notice if nothing is ever recorded.
The decision about whether to put on paper reasons for failing to hire is best left to individual
employers who may choose to record this information, while instituting a monitoring system that
will catch any areas of potential vulnerability. As long as an employer’s policies about hiring are
consistently applied and are reasonable, there should be no problems - whether recorded in
writing or not.
Testing in the Employment Environment
Pre-employment testing can help locate ideal employees, but may also land the employer in
court. Managing the risk created by use of pre-employment tests requires an understanding of
the types of pre-employment tests used the benefits they offer, and their possible costs, beyond
the monetary expenditures involved in testing. A survey by Colorado-based Avert, Inc. of 2.6
million job applications revealed that 44 percent of the resumes contained lies.
Pre-employment testing began in the 1950s as a response to the inefficiencies that were
purportedly present in American business. Since that time, pre-employment testing has been
considered a necessity to the selection process. Employers believed that they would be more
competitive if they could test applicants in order to “weed out” those who failed the tests. On the
other hand, many of these tests were not validated and did not actually test for the characteristic
sought to be removed from the work place.
Testing in the work place has taken two forms:
1. Tests for the purpose of finding the best individual for a position. a. Such as achievement tests and personality indicators.
b. The problem with this type of eligibility test is that while it may appear facially neutral, it may have a disparate impact upon a protected class.
c. Pursuant to the Civil Rights Act of 1964, where adverse impact has been shown, the test may still be used if it has been professionally developed and validated.
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d. If used properly however, a validated test will not only determine for the employer the most appropriate applicant for the position, but may also reduce the
chance for discriminatory choices based on conscious or subconscious employer
bias.
Tests to ensure that the individual is free of difficulties
These include such tests as tests for drug and alcohol abuse and other impairments which may
limit an applicant’s ability to perform. The problem of addiction has permeated almost every
facet of our lives, including the work place. As technology has improved, impairment tests have
become more efficient, less expensive, and therefore more prevalent.
In an effort to protect individual employee rights, courts do a balancing test in order to determine
the legality of ineligibility testing. At some point, an individual’s privacy interests trumpet an
employer’s efficiency concerns. That point is when the invasion of privacy is a substantially and
highly offensive to the reasonable person. The courts weigh the conflicting interest of the
employer in securing a problem- or substance-free work place against the privacy rights of the
employee and protections against self-incrimination.
As many of the protections afforded to the employee derive from the Constitution (Fourth
Amendment protection against unreasonable searches and seizures, Fifth Amendment right
against self-incrimination, and Fifth and Fourteenth Amendments protections of due process),
generally government employees and contractors receive greater protection in these areas than do
employees in the private sector. State constitutions can be a source of protection as well.
Legality of Eligibility Testing
Eligibility testing comprises those tests which an employer administers in order to ensure that the
potential employee is capable and qualified to perform the requirements of the position. These
tests may include intelligence tests, tests of physical stamina, and eye exams, and basically test
for levels or achievement or aptitude, and/or the presence of certain personality traits.
Tests for ineligibility, on the other hand, include tests for disqualifying factors, such as drug and
alcohol tests, polygraphs and HIV testing.
Title VII Implications
Certain tests may in their implementation have a disparate impact upon members of a protected
class. For example, an employer's test for English language competency would have an adverse
impact on individuals of non-English speaking origin. Where discrimination on the basis of
national origin has been shown, the employer may continue to use the test only where it can
establish that the requirement is a bone fide occupational qualification.
Title VII specifically exempts professionally developed employment tests of eligibility from
disparate impact claims of discrimination, as long as the test is not designed, intended or used to
discriminate on the basis of membership in a protected class. Therefore, if a test has been
validated according to strict validation standards, Title VII does not prohibit its use, even where
disparate impact is present.
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In order for an eligibility test to be legally validated as an effective gauge of performance, an
employer must show that the test is a business necessity, as well as predictive of job
performance. In other words, a test for intelligence must actually test intelligence, and
intelligence must be necessary for adequate performance of the job in question. Even where
these two requirements have been satisfied, the test may still be challenged if a less
discriminatory alternative exists.
In order to satisfy the first requirement that the test is a business necessity, the employer must
show that the quality which is measured by the test is a bona fide occupational qualification
necessary to adequate performance in the position.
In order to satisfy the second requirement that the test examines that which it purports to
examine, the employer must show that the test is valid, that it measures what it purports to
measure and measures it accurately.
A job applicant or employee can show adverse affects by different methods but the most
common approach is the “applicants-statistics” approach. The approach compares the
percentage of minority applicants successfully passing a personality or aptitude test to the
percentage of majority of applicants.
Test Validity - Uniform Guidelines on Employee Selection Procedures
Where a selection test has been shown to have an adverse impact on a protected class the
Guidelines direct that the test be validated. The Guidelines identify different forms of test
validation; the choice of validation strategy depends upon the type of inference the use wishes to
draw from the test scores. The guidelines define an adverse impact on a protected class as any
procedure which has a selection rate for any one group of less than 80% of the selection rate of
the group with the highest rate (i.e. the “Four-Fifths Rule”).
Criterion Related Validation
The most traditional type of validating a test is criterion related/empirical statistical validity. The
test must be shown to accurately predict job performance as evidenced by the ability to do the
job. This form of validation collects data relating to job performance from a simulated exercise
then creates statistical relationships between measures of job performance and test scores. The
criterion is the performance score that one receives which says how well you did during the
simulation.
The guidelines explain that the criterion on which the test is based may include measures other
than work proficiency, such as training time, supervisory ratings, regularity of attendance and
tenure.
Whatever criteria are used, they must represent major or critical work behaviors as revealed by
careful job analyses.
In connection with criterion-based validation, it is important that the employer identify the
proper criteria to be measured, identify the proper measurement, and establish a significant level
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of correlation between criterion measurement and job performance.
Content Validation
A test which has content validity is one which specifically tests for those skills required by the
specific position. To be content valid, a test measuring a skill or ability should either closely
approximate an observable work behavior or its product should closely approximate an
observable work product. The closer the content and context of the test are to work samples or
behaviors, the stronger the basis for content validity. The less the test resembles the work
situation, the less likely the test is to be considered valid.
Contrary to criterion validity which attempts to predict performance, a test which is content valid
specifically measures performance of certain position requirements.
Construct Validation
This form considers the psychological make-up of the applicant and compares it to those traits
necessary for adequate job performance. Specific traits necessary for each position are identified
through in depth research and analysis. One such trait may be the ability to work well as a team
member. Forms of construct valid tests may include personality or behavior examinations. The
main issue in connection with construct validity is not whether the test measures a specific
construct, but instead whether that construct is predictive of or important to job performance.
Subgroup Norming is the practice of adjusting testing to make scores equivalent across
subgroup populations. Traditionally, the EEOC has required that a test must not only be valid for
the overall population to be tested, but also must be valid for each separate minority subgroup.
In the past, this goal was achieved through subgroup norming or race norming.
The Civil Rights Act of 1991 added an additional provision to Title VII which prohibits
employers from adjusting or altering test scores on the basis of membership in a protected class,
and from using different cutoff scores on tests on that basis. Therefore, race norming that allows
for (or required) the use of different standards and measurements on the basis of race, gender,
religion, or national origin is no longer legal, and the portion of the Guidelines which permitted
employers to use different cutoff scores for certain minorities is now invalid.
The Uniform Guidelines on Employee Selection Procedures also require that, where there is
evidence of an adverse impact, employers of 100 or more employees must maintain specific
records in order to ascertain the validity of tests and their impact on various populations.
Job-related Requirement
In addition to test validation, an employer must show that the specific trait for which the
applicant is being tested is a bona fide occupational qualification.
Integrity and Personality Tests
As employers have been restricted in their use of polygraph tests, many have resorted to
subjective tests which purport to measure honesty or integrity through analysis of written or oral
answers to numerous questions. In addition, employers have resorted to analysis of handwriting
and other non-traditional forms of employee selection and discovery of personality-related
Recruitment and Appraisal of Applicants in Employment Page 14 of 23
information.
Validity
While the validity of such tests in discovering useful employment-related information remain at
issue, the tests have not been shown to have a consistently adverse impact on any one protected
group. It is generally agreed that a basic intelligence test is too blunt an instrument with which
to determine any specific employment-related results. Because of the use of these methods,
several states severely restrict or prohibit various personality tests.
Personality tests should not be confused with intelligence tests, which have suffered a great deal
of criticism in connection with their potential for disparate impact discrimination against various
minority groups.
Physical Ability Testing
Physical Ability Tests are administered to applicants seeking particularly physically demanding
jobs. This type of test is used to increase the likelihood candidates will be able to perform the
essential physical functions of the job in question. Because the ADA calls for the testing of
essential functions, general tests of fitness may no longer be an appropriate means of testing for
physical fitness. Under current laws, physical ability testing usually results in some type of job
simulation.
Medical Testing
Many employers require pre-employment, post-offer medical tests in order to ensure that the
applicant is physically capable of performing the requirements of the position. Medical
examinations are prohibited only prior to the offer in order to protect against wrongful
discrimination based on a discovered disability.
Pursuant to the Americans with Disabilities Act and the Vocational Rehabilitation Act, an
employer may not reach an employment determination on the basis of a disability, where the
applicant (or employee) is otherwise qualified for the position, with or without reasonable
accommodation.
Medical examinations subsequent to the offer of employment but prior to the actual employment
are allowed under the Acts for the purpose of determining whether an employee is able to
perform the job for which she or he has been hired. The Acts require, however, that all
employees within the same job category be subject to the medical examination requirement;
individual applicants may not be singled out.
In addition, all information generated through the examination process must be maintained in
confidential files, separate from other general personnel-related information.
Subsequent to the applicant's employment, no medical examination may be required unless the
test is job-related and justified by business necessity.
Legality of Testing for Ineligibility
The employer may wish to reduce workplace injury or to provide a safer working environment.
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Drug testing has been shown to drastically reduce the number of workplace injuries and personal
injury claims. Also, an employer may use to tests in order to predict employee performance.
Personnel costs related to drug use, workplace crimes, and personality conflicts lead to great
increases in costs to the employer. Finally, this type of testing can reduce the employer’s
financial responsibility to the state workers’ compensation system. The use of an illegal
substance which contributes to the claimant’s injury may serve as a defense to the employer's
liability.
Employees in the private sector, though not protected by the Constitution (no state action), do
have some claims against testing. Portions of the constitutions or state statutes of certain states
establish private sector requirements for workplace testing.
There is also some support for a claim of common law invasion of privacy in connection to
private sector testing. In order to support a claim of invasion of privacy, the individual must
show that her or his privacy was invaded by:Unreasonable intrusion upon her or his seclusion;
Appropriation of her or his name or likeness;
Unreasonable publicity of her or his private facts; and
Publicity that unreasonably places the individual in a false light before the public.
Of these causes of action, the ones most likely to arise in the employment context are intrusion
and public disclosure of private facts. Some courts have adopted some or all of these causes of
action while others have not.
Workers have also found support for claims based on reckless or negligent infliction of
emotional distress. This would occur where the employee can show that the employer's intrusion
into the employee’s private affairs constitutes intentional (and in some states, even reckless or
negligent) extreme and outrageous conduct, and would cause mental suffering, shame, or
humiliation (be highly offensive) to a reasonable individual under similar circumstances. In
determining the offensiveness or reasonableness of the invasion, courts will balance the
employer’s reason for the test with the extent or intrusiveness of the invasion of privacy.
An employee may be able to state a claim for defamation. The employee must be able to show
that The employer disseminated his or her intimate information to the public; and
That disclosure was not reasonably necessary to serve the employer’s legitimate
business interest in the fitness of the employee to perform her or his job.
This latter requirement would allow dissemination of the information to those persons who have
a “need to know” the information in order to adequately perform their jobs. *The exception is
lost where the employer disclosed the information on the basis of its malice against the
employee.
Once the test has been administered, whether it is a physical, a drug test, or a polygraph, it is
advisable for the employer to secure the chain of custody of any data, samples, or both and to
confirm the results with other examinations.
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There are only two exceptions to the policy against testing: Where conducted by an employer based on a reasonable good faith suspicion of an
employee’s drug usage or
Where an employee’s job responsibility involves public safety or the safety of others.
Many courts hold strong to the theory that, in the private sector, and where there is no
employment contract binding the parties to the relationship, the employer has every right to
impose testing and, if the employee does not like it, she or he may simply leave that job. If
enough employees refuse to submit to the test and instead leave the job, the employer will be
forced to alter its conditions of employment to obtain or retain employees.
Forms of Testing -- Polygraphs, Truth-telling devices
A polygraph test measures three physiological indicators of arousal, rate and depth of respiration,
cardiovascular activity, and perspiration. The examiner asks a structured set of questions and the
subject is evaluated as honest or deceitful based on the pattern of arousal responses.
The test has been criticized, however, as catalysts other than dishonesty may produce similar
effects in an individual subject. For instance, if an individual is aware that the basis for the test
is a concern regarding theft, she or he may become innocently aroused when asked questions
relating to the theft. On the other hand, the individual who has actually committed the theft may
not be concerned at all; if the person was capable of theft, she or he may be just as comfortable
with deceit.
It is unclear why so many employers want to use polygraphs when one understands how
unreliable they are. Because of the large number of false positives and inaccuracies of the
polygraph test, a loud outcry from those wrongly accused of improper behavior has resulted in
the enactment of the Federal Employee Polygraph Protection Act of 1988. This Act, to a great
extent, puts an end to polygraph use in selection, and greatly restricts its use in many other
employment situation. The Act provides that an employer may not: directly or indirectly require, request, suggest or cause any employee to take or
submit to any lie detector test, e.g. a polygraph, deceptograph, voice-stress analyzer,
psychological-stress evaluator, and any similar mechanical or electrical device used
to render a diagnostic opinion about the honesty of an individual;
use, accept, refer to, or inquire about the results of any lie detector test of any job
applicant or current employee;
discharge, discipline, discriminate against, or deny employment or promotion to (or
threaten to take such adverse action against) any prospective or current employee who
refuses, declines, or fails to take or submit to a lie detector test, or who fails such a
test.
However, there are certain employers who are exempt from these regulations. These employers
include:
Private employers whose primary business purpose is to provide security services.
Prospective employees may be tested if the positions to which they are applying
involve the protection of nuclear power facilities, shipments or storage of radioactive
Recruitment and Appraisal of Applicants in Employment Page 17 of 23
or other toxic waste materials, public transportation, or currency, negotiable
securities, precious commodities, or proprietary information.
Employers involved in the manufacture, distribution or dispensing or controlled
substances. Employers may administer polygraph tests to applicants for positions that
would provide direct access to the manufacture, storage, distribution or sale of a
controlled substance.
Federal, state and local government employers.
The federal government may also test private consultants or experts under contract to the
Defense department, the National Security Agency, the Defense Intelligence Agency, the Central
Intelligence Agency, and the Federal Bureau of Investigation.
A private employer may also test current employees if the following four conditions exist. This
is called the Investigation Exemption. First, the test must be administered in connection with a workplace theft or incident
investigation.
Second, the employee must have had reasonable access to the missing property or
loss incurred.
Third, the employer must have reasonable suspicion that this particular employee was
involved.
Fourth, the employee must have been given written information regarding the basis
for the investigation and for the suspicion that she or he is involved.
An employer can not discharge, discipline, or otherwise discriminate against the test taker in any
manner on the basis of the polygraph test results or refusal to take a polygraph test without
additional supporting evidence. Violations of the Act are subject to fines as high as $10,000 per
violation, as well as reinstatement, employment or promotion, and the payment of back wages
and benefits to the adversely affected individual.
The Wage and Hour Division of the Employment Standards Administration of the Department of
Labor has the authority to administer the Employee Polygraph Protection Act.
A recently patented test, the digital video functional capacity assessment (DV-FCA), may
evaluate whether an individual is falsely claiming an injury or impairment that isn’t revealed by
an X-ray or other medical tests. The test involves videotaping the individual while he or she
performs a series of 20 motions, including repetitive movements, walking, bending, and lifting.
The filmed movements are then analyzed by a computer program, which generates graphs that
allegedly show the individuals ability to perform each task. The biggest customers of DV-FCA
are insurance companies.
Drug and Alcohol Testing
Based on the 1998 Annual National Household Survey, 73% of all current illegal drug users 18
or older were employed in 1997. In response to the growing problem of drugs in the workplace
(70% of all illegal drug users are employed), and related injuries and accidents, President Bush
enacted the Drug-Free Workplace Act in 1988 which authorized the drug testing (or
“biochemical surveillance”) of federal employees under certain circumstances. Pre-employment
Recruitment and Appraisal of Applicants in Employment Page 18 of 23
screening of job applicants and testing as a part of a rehabilitation program are allowed by the
Act.
In addition, the Act requires that federal contractors and grant recipients satisfy certain
requirements designed to eliminate the effects of elicit drugs from the workplace.
In response to the Act, all federal agencies established individual drug-use testing programs
designed to ensure the safety and security of the government and the public. The Act also
provides that, in order for a drug-use testing program to be legal, covered employers must posts
and distribute a policy statement explaining that the unlawful manufacture, distribution,
dispensation, possession, or use of controlled substances is prohibited. Discipline or sanctions
against the offending employee is left to the employer's discretion. However, if a criminal
conviction arises from a workplace substance abuse offense, the employer is required to
administer an employment sanction or advise and direct the employee to an approved substance
abuse treatment program.
In order to protect the employee’s right to due process, the employer must educate the work
force of any drug/alcohol policy and testing procedures. In addition, laboratory and screening
procedures must meet certain standards.
Types of substance tests
The most common form of employee drug-use screening test is an immunoassay test.
The typical test kit will include a number of solutions (reagents) which are added to a urine
sample. When the reagent containing a drug antibody is mixed with the urine, drug-infected
urine will become denser. When the change in density is visible, the test result is positive.
Confirmatory tests should then be administered.
The immunoassay test has several limitations. First, the test is subject to cross reactivity, where the test detects small amounts of
similarly structured drugs, some of which are not illegal.
Second, the test does not evidence the time or quantity of ingestion, or the effects of
the impairment on job performance.
In addition, the test only investigates the presence of one drug at a time.
A second form of drug testing, testing hair follicles (“radioimmunoassay of hair”), has therefore
become more popular among employers. This test works on the theory that substances are
absorbed into the bloodstream and incorporated into the hair as it grows. A hair follicle test can
purportedly determine the chronology and degree of the subject’s drug use by reporting that
which was in the body at the time the hair was formed in the follicle. Any positive response is
confirmed by a more sensitive gas chromatography/mass spectrometry test. The procedure
involves cutting a small amount of hair from the subject, approximately one and one-half inches
in length from the back of the head so as to remain physically unnoticed. The sample is placed
in a collection envelope which is immediately sealed and transported to a testing facility.
Because of the sampling technique, hair follicle testing is slightly less intrusive than are
urinalyses.
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Many urinalysis examinations are monitored in order to prevent tampering or contamination; this
type of intrusion into personal activities would not be required in a follicle exam. In addition,
the window of detection opened by a follicle test is much greater than that of a urinalysis. The
follicle test is reliable up to a period of approximately three months, compared with the one to
three day window of reliability for urinalysis. On the other hand, many of the arguments which
arise in connection with urinalysis drug testing can be repeated here. Hair follicle testing
provides much quantifiable information regarding the amount of drugs ingested, and the period
of time over which the drugs were taken. Given its ability to reveal extensive information,
follicle testing has been attacked as an unreasonable intrusion into the subject’s private life in
connection with unregulated and unrelated off-work activities.
Application of the Americans with Disabilities Act
The Act, which applies to private sector employers, provides that individuals who currently use
illegal drugs are not considered individuals with disabilities. However, if an employee or
applicant is pursuing or has successfully completed a rehabilitation program and demonstrates
that they have a disability based on prior use, she or he is covered by the Act and therefore
entitled to reasonable accommodation.
Private Sector Employees
The Drug-Free Workplace Act does not apply to private sector employers; nevertheless, private
employers have generally followed the guidelines set forth in the Act in the institution of their
own programs, and such programs have generally been upheld where reasonable procedures are
followed. Occupation-Specific Regulations restrict or require drug testing of certain employees.
Where the government requires or actively encourages testing by the private sector, the testing
may be subject to Constitutional scrutiny. For instance, the Department of Transportation (DOT)
requires private sector transportation employers to randomly drug test employees in safety or
security related positions. In addition, under certain circumstances, DOT requires pre-
employment and periodic testing, testing where reasonable cause exists and subsequent to any
accidents. An employee who tests positive is removed from her or his position and can only
return after successful completion of a rehabilitation program.
These requirements must meet Constitutional requirements of privacy and due process, even
though the testing is actually carried out by private employers.
The Drug-Free Workplace Act of 1998 is aimed at providing small businesses, which often
lack the resources and infrastructure to conduct employee drug tests, with the financial resources
and technical assistance needed to implement a drug testing program. The three purposes of the
Act are to
Educate small business concerns about the advantages of a drug free workplace;
Provide financial incentives and technical assistance to enable small business
concerns to create a drug free workplace; and
Assist working parents in keeping their children drug free.
Twenty-three states have enacted legislation designed to protect the privacy of private sector
employees. These state laws vary in their approach; some states offer a great deal of protection
Recruitment and Appraisal of Applicants in Employment Page 20 of 23
for employees and may be classified as pro-employee (such as Connecticut, California and
Minnesota), while other states allow testing after satisfaction of only modest burdens and are
classified as pro-employer (such as Utah).
Genetic Testing
Genetic testing is a scientific development that involves the use of laser and computer
technology. Scientists make diagnostic predications by locating a specific disease-associated
gene on an individual's chromosomes. By testing an applicant's genes, researchers are able to
ascertain which applicants can be expected to experience negative reactions to various
chemicals. In a study by the OTA concluded in 1983, the office found that “none of the genetic
tests evaluated by the OTA meets established scientific criteria for routine use in an occupational
setting. However, there is enough suggestive evidence to merit further research.”
Today, with the tremendous advances in medical and technological fields, employers who
choose to use genetic testing would have humongous amounts of information at their fingertips.
Governments and private sector firms are rushing to map the entire human genome for the
purposes of preventing and treating countless health problems. However, there does not yet exist
any Federal legislation or regulations restricting the use of this personal, private, and potentially
volatile information. The fear includes the concern that an employer might discover something
about an individual's genetic makeup that points to the potential for a debilitating disease and
therefore may choose not to hire the individual based on that potential, even though the person
may never develop that disease. In addition, the individual might have no previous knowledge
of their disposition towards the disease and, in fact, might not want to know. Should the
employer let that person know the reasons for their failure to get the job? Taken to an extreme,
genetic testing might allow society to separate individuals on the basis of their potential for
disease - a result that is not taken lightly.
Genetic testing is far from perfect. Researchers have found that some of the genetic differences
found in the test might be due to damage to the genes from the test itself. Similarly, the tests (in
their present technological state) evidence only the response of the sample to the presence of a
certain toxic agent. The results show merely that the subject is more susceptible to that toxic
agent than someone else. Only infrequently can the test show more than this mere susceptibility
or potentiality
One additional issue raised by genetic testing is based on the fact that genetic irregularities which
may substantially impair a major life activity may be considered protected disabilities under the
Americans with Disabilities and Vocational Rehabilitation Acts.
A genetic test may only encourage discrimination based on myths, fears and stereotypes about
genetic differences. In addition, at least 21 states prohibit or limit genetic testing as a matter of
law. Except to determine an employee’s susceptibility or level of exposure to potentially toxic
chemicals in the workplace, employers in several states are prohibited from using genetic testing
as a condition of employment, including New Hampshire, Illinois, North Carolina, Rode Island,
Vermont and Wisconsin. Many states prohibit discrimination and employment decisions based
on genetic information.
Recruitment and Appraisal of Applicants in Employment Page 21 of 23
Unique Considerations of HIV/AIDS Testing
Employers unreasonably fearful about the onslaught of HIV in the workplace and the effect it
will have on their work forces are anxious to test their employees or applicants for the presence
of HIV. However, the HIV test in the workplace is inappropriate for two reasons. First, in order for the test to be justified, it must serve a legitimate business purpose.
As HIV is not transmitted by casual contact of the sort that takes place in a work
environment, an HIV test is improper for most positions.
Second, the test only reports the subject's status as of several weeks, if not months, in
the past. The test does not determine the HIV status of the individual as of the day of
the examination.
Therefore, unless the employer monitors and restricts the employee’s off-work activities prior to
the test and in between testing, the inquiry is inefficient and ineffective. In addition, an
employer may not take an adverse employment action against a
