Covering the Bases - Legal Aspects to Consider

When using any test as a selection tool, it is important to make sure all of your bases are covered to assure objectivity and non-discrimination in the selection and hiring process. The bases you should always consider include:

  1. "Validation" - Providing you've used a well defined method of selecting the most and least successful employees (such as sales production, customer satisfaction, business growth, etc. as applicable for the job), you are in essence providing the level of validation needed to use the information as a selection tool. There is a myth within the industry that has been perpetuated and told for many years, that a formal "validation" study must have been completed by the test developer in order for the test to be considered valid, however, in our opinion, this is not correct.

    A Supreme Court decision in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) seems very clear in stating 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.'"

    Having objectively demonstrated differences between the most and least successful employees and assuring the trait is applicable to the job for which it is being applied meets the "business necessity" and "job relatedness" theories, in our opinion. We suggest that if you have any question or doubt in this area, please review this case with your corporate counsel.

  2. Job Relatedness or Applicability - As mentioned earlier, it is important that only those traits that can be demonstrated as being applicable to the job and where testing both the most and least successful employees demonstrates a measurable difference, should be considered in order to meet EEOC guidelines.

    The EEOC position has been elaborated in its 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).

    Hire Success' opinion is that it is important to test current employees in each job in this manner in order to establish the predictability and appropriateness of each trait being used in the "Baseline File". Again, if you have any doubts, or wish to confirm this opinion, we urge you to consult your corporate counsel for advise.

  3. Non-Discrimination - Naturally, no test should discriminate against any individual or group of people, and a properly developed "baseline" can help assure non-discrimination in many ways.

    First, in the case of the Personality Profile, no information about the individual is used in determining the personality or traits except the values the person being tested entered regarding how each of the 100 adjectives applied to them on a 1-5 scale. Other than the person's name, gender is the only additional piece of information required for the test and that is only used to correctly print "he" or "she" in the report test, not in the evaluation of the personality or trait information. Since it is a "self analysis" of how the adjectives apply, no third party could affect the outcome through any personal prejudice or discriminatory practice.

    Second, because the computer does 100% of the data analysis and report development, no individual has the ability to even casually affect any output of the report and thus it would be practically impossible for a case to be made that the computer was somehow able to discriminate based on the applicant's own analysis of themself.

    Another key Supreme Court case, Griggs v. Duke Power Co., 401 U.S. 424 (1971), addressed discrimination in employment testing, although the case was about "intelligence" and "aptitude" testing, not personality testing. The case referred to Title VII of the Civil Rights Act of 1964 (the "Act") when it held the following to be true:

    "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."

    "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."

Without such an objective tool as Hire Success , virtually anything could be alleged. With Hire Success , there is not "artificial barrier" and through proper development of the Baseline File, a "demonstrably reasonable measure of performance" can be achieved.
This is why we strongly suggest each employer, and user of the Hire Success system, follow the Guidelines set forth in the section Proper Use Of Employment Testing.

This Page is not intended to give legal advise or a legal opinion on these or any topic.
Please Consult your Legal Counsel for proper legal advise on these or any other
subjects related to the use of Pre-Employment Testing.