1
The materials contained in this presentation were preparedby the law firm of Jackson Lewis LLP for the participants’refere...
Represents management exclusively in every aspect ofemployment, benefits, labor, and immigration law andrelated litigation...
Using specially designed proprietary software, our diversepractice group of 40 lawyers and paraprofessionalsprepares over ...
Matthew Camardella is a Partner in the Long Island, New York office of Jackson LewisLLP, and a member of the Firm’s Affirm...
Michelle Duncan is a Partner in the Denver office of Jackson Lewis. Michelle focuses herpractice on representing employers...
What Is a TestWhy Use TestsLegal Theories of DiscriminationTesting Your TestCommon Issues with Validation7
Any selection tool that rates, ranks or scores:o Examples:• Cognitive• Personality• Pen/paper• Electronic• Interviews• Bac...
Increased competition for jobs (rise ofonline application systems and highunemployment rates).Tests are an efficient way t...
As employment testing has become more prolific and sophisticated, the use ofsuch tests by employers has also faced increas...
Disparate TreatmentoIndividualoPattern or PracticeDisparate Impact11
Exists when one group or individual is treated differentlythan another group or individual “because of” race,color, religi...
A facially neutral policy or practice that is uniformlyapplied produces a significant adverse impact on aprotected group.o...
Disparate Impact:XYZ, Inc. believes that a healthyworkforce is a happy and productiveworkforce. XYZ has a policy that to b...
“A substantially different rate of selection in hiring,promotion or other employment decision which works to thedisadvanta...
“Standard Deviation” – how much variation or“dispersion” exists from the mean or average.Low standard deviation indicates ...
Four variables are entered into the analysis:1. Number of focal group members who pass the test2. Number who do not pass t...
Analysis Rate forDisfavoredGroupRate forFavored Group80%RuleStandardDeviationMinority v.Non-Minority2/15.135/20.25.53 0.85...
An employer may use a test that has an adverse impact onprotected groups IF it can show that the assessment has a manifest...
The employer must show eithero That the test accurately reflects the tasks performed on the jobORo That the test requires ...
Uniform Guidelines on Employee Selection Procedures –rule book on validation requirements for EEOenforcement agencies.Cont...
Criteriono Correlation between the test and criterion variable(s).o Compares the test with other measures or outcomes (cri...
Constructo Measures the extent to which developed tests actually measurewhat they purport to.o Statistical analysis of the...
A validated test will be:o Reliable;o Fair;o Minimize the potential for adverse impact; ando Validated through studies tha...
No consideration of reasonable alternativeso If a properly validated test creates adverse impact then an employershould co...
Issue: Employment test is more difficult than the jobitself.Facts: Company implemented a strength test which wascoupled wi...
Issue: Employment test does not look for skills that areactually necessary and critical to the duties of the job.Facts: Co...
Issue: The employment test “expires” after technology improves.Facts: A cognitive test, which determined who got into anap...
Do not be scared to use an employment test:can efficiently accomplish “screening in” and“screening out” candidates, which ...
Please feel free to contact us if you have any questions:Matthew J. Camardella(631) 247-4639camardem@jacksonlewis.comMiche...
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Test Your Tests

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This presentation will explore recent developments and enforcement trends in this area and will provide strategic and practical tips for effectively managing employment testing practices and preparing for (or defending against) a challenge from OFCCP or EEOC.

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Test Your Tests

  1. 1. 1
  2. 2. The materials contained in this presentation were preparedby the law firm of Jackson Lewis LLP for the participants’reference in connection with education seminars presentedby Jackson Lewis LLP. Attendees should consult withcounsel before taking any actions and should not considerthese materials or discussions about these materials to belegal or other advice.2
  3. 3. Represents management exclusively in every aspect ofemployment, benefits, labor, and immigration law andrelated litigationOver 700 attorneys in 50+ locations nationwideCurrent caseload of over 5,000 litigations andapproximately 300 class actionsFounding member of L&E Global3
  4. 4. Using specially designed proprietary software, our diversepractice group of 40 lawyers and paraprofessionalsprepares over 2200 affirmative action plans (“AAPs”)annually for our federal contactor clients. We defendagainst the imposition of citations and allegations ofdiscrimination in connection with audits by the Office ofFederal Contract Compliance Programs (“OFCCP”) andoffer liability avoidance services, including vulnerabilityaudits and statistical analyses employing the methodologyused by the OFCCP to identify potential discrimination.4
  5. 5. Matthew Camardella is a Partner in the Long Island, New York office of Jackson LewisLLP, and a member of the Firm’s Affirmative Action Practice Group. He directs thepreparation of more than 400 AAPs each year and has defended hundreds of OFCCPaudits for a broad range of employers across the country. In addition, Mr. Camardellaserves as the Practice Group lead on responding to OFCCP allegations of class-baseddiscrimination. He spends significant time counseling clients about the design andimplementation of company-wide AAP structures, applicant flow tracking systems,compensation practices and other complex “real world” compliance issues.Mr. Camardella also is General Counsel to the American Association for AffirmativeAction (AAAA) and serves as Vice-Chair of the Philadelphia “Liberty” Industry LiaisonGroup (ILG). His work with AAAA and ILG keeps him abreast of OFCCP enforcementtrends.Mr. Camardella joined Jackson Lewis in September, 1997. He received a B.A. from theCollege of the Holy Cross in 1993 and graduated with honors from Hofstra UniversitySchool of Law in 1997. While at Hofstra, he was Editor-in-Chief of the Hofstra Labor LawJournal and received the Award for Outstanding Performance in Labor and EmploymentLaw. He is admitted to the New York State Bar.5
  6. 6. Michelle Duncan is a Partner in the Denver office of Jackson Lewis. Michelle focuses herpractice on representing employers in affirmative action and employment discriminationmatters before OFCCP, workplace safety and health matters before OSHA and minimumwage and overtime matters before the U.S. Department of Labor’s Wage and HourDivision.Michelle joined the firm after working for nearly fourteen years as a trial attorney with theU.S. Department of Labor, Office of the Solicitor. She served in the National Office inWashington, D.C., as well as in the Dallas and Denver Regional Offices.During her tenure with the U.S. Department of Labor, Michelle was widely regarded as aleading expert on OFCCP litigation. She litigated numerous OFCCP cases and providedongoing counsel to high-level OFCCP officials.Michelle received her Bachelor of Arts degree in American Public Affairs from MichiganState University, James Madison College in 1993. In 1998, she received her jurisdoctorate degree, cum laude, from the American University, Washington College of Law.She is a member of the bar in Maryland and Colorado.6
  7. 7. What Is a TestWhy Use TestsLegal Theories of DiscriminationTesting Your TestCommon Issues with Validation7
  8. 8. Any selection tool that rates, ranks or scores:o Examples:• Cognitive• Personality• Pen/paper• Electronic• Interviews• Background checks (criminal, credit, etc.)8
  9. 9. Increased competition for jobs (rise ofonline application systems and highunemployment rates).Tests are an efficient way to “screenout” candidates who lack theknowledge, skills and abilitiesnecessary to perform a specific joband “screen in” those individuals mostlikely to succeed.Tests can also help employers identifycurrent employees for promotion.9
  10. 10. As employment testing has become more prolific and sophisticated, the use ofsuch tests by employers has also faced increased scrutiny, especially fromEqual Employment Opportunity (EEO) enforcement agencies.304 charges of discrimination stemming from employment testing andprescreening background checks in 2007, total number of charges filed hassteadily increased since then.March 2006 (EEOC’s Systemic Task Force Report): “[C]ombating systemicdiscrimination should be a top priority at [the] EEOC[.]”2011 EEOC Annual Report: The Agency “places a high priority on issues thatimpact large numbers of job seekers, and employees[.]10
  11. 11. Disparate TreatmentoIndividualoPattern or PracticeDisparate Impact11
  12. 12. Exists when one group or individual is treated differentlythan another group or individual “because of” race,color, religion, sex, national origin, disability or veteranstatus.Proof of intent or discriminatory motive is REQUIRED!This is not likely to occur in the employment testingcontext because it would require that a test only begiven to one group of people or be specifically designedto screen out individuals on the basis of a protectedcharacteristic.12
  13. 13. A facially neutral policy or practice that is uniformlyapplied produces a significant adverse impact on aprotected group.o Requiring a college degreeo Employment testo Physical requirement (such as a lifting)Title VII of the Civil Rights Act of 1964 generallyforbids the use of employment tests that arediscriminatory in effect.Griggs v. Duke Power (1971)13
  14. 14. Disparate Impact:XYZ, Inc. believes that a healthyworkforce is a happy and productiveworkforce. XYZ has a policy that to beconsidered for employment, applicantsmust be able to jump high enough totouch the net of a basketball hoop.8 of every 10 men pass the jump test.2 of every 10 women pass the jump test.14
  15. 15. “A substantially different rate of selection in hiring,promotion or other employment decision which works to thedisadvantage of members of a race, sex, or ethnic group.”-Uniform Guidelines on Employee Selection Procedures(1978) (FAQ #10)80% or 4/5th Rule of Thumb – Uniform Guidelines(EEOC).2 Standard Deviations – Preferred by statisticians andmany courts.15
  16. 16. “Standard Deviation” – how much variation or“dispersion” exists from the mean or average.Low standard deviation indicates the data pointstend to be very close to the mean (i.e., similar).High standard deviation indicates data points aredispersed over large range of values.Two standard deviations signifies the point at whichstatisticians say a legitimate trend exists, asopposed to a chance relationship (with a reasonablelevel of certainty).16
  17. 17. Four variables are entered into the analysis:1. Number of focal group members who pass the test2. Number who do not pass the test3. Number of reference group members who pass the test4. Number who do not pass the test17
  18. 18. Analysis Rate forDisfavoredGroupRate forFavored Group80%RuleStandardDeviationMinority v.Non-Minority2/15.135/20.25.53 0.85Minority v.Non-minority2/50.045/20.25.16 2.65*18NOTE: Just because this is above 2.0 standard deviations does not mean thatan employer is automatically liable, but it does mean that the employer musttake additional steps in order to continue using the test without being liable.
  19. 19. An employer may use a test that has an adverse impact onprotected groups IF it can show that the assessment has a manifestrelationship to the position at issue.o Albermarle Paper Co. v. Moody (Supreme Court, 1975)So, companies can use tests that have an adverse impact, providedthat the employer can show that it is not being used to discriminateintentionally and can demonstrate that the test is job-related andconsistent with the needs of the employer from a business standpoint (i.e., have the test validated).Uniform Guidelines on Employee Selection Procedures (1978)provide technical rules for validation and require it if an employerfinds adverse impact against a particular gender or racial or ethnicgroup.19
  20. 20. The employer must show eithero That the test accurately reflects the tasks performed on the jobORo That the test requires the test-taker to demonstrate that he orshe possesses the necessary underlying knowledge, skills orabilities to successfully perform the job.Example: A warehouse worker must repeatedly lift 50 lbboxes, so the test should not relate to overall health orwhether the applicant can lift 150 lbs.o The test cannot be considerably more difficult than the job itself.20
  21. 21. Uniform Guidelines on Employee Selection Procedures –rule book on validation requirements for EEOenforcement agencies.Contento Non-statistical.o Degree to which the content of the test matches content domainof the job.o Typically involves subject matter experts (SMEs) evaluating testitems against the test specifications.21
  22. 22. Criteriono Correlation between the test and criterion variable(s).o Compares the test with other measures or outcomes (criteria)already held to be valid (e.g., measures of job performance).o Concurrent Validity Evidence – Test data and criterion datacollected at the same time.o Predictive Validity Evidence – Test data collected first (to predictcriterion data collected later).22
  23. 23. Constructo Measures the extent to which developed tests actually measurewhat they purport to.o Statistical analysis of the test and the relationships betweendifferent answers.23
  24. 24. A validated test will be:o Reliable;o Fair;o Minimize the potential for adverse impact; ando Validated through studies that are large enough to establish aconfident reliability coefficient.Also, should be validated in the context for which it willbe used and should not reflect any racial, cultural orgender stereotypes.Plus the test must be coupled with a back-and-forthreasonable accommodation dialogue, if necessary, forindividuals with disabilities.24
  25. 25. No consideration of reasonable alternativeso If a properly validated test creates adverse impact then an employershould consider if there are alternative testing means which produceless adverse impact.Validation study outdatedo As job responsibilities change and/or technology improves, a previouslyvalidated test may “expire.”o Update required every 5 years.Reliance on validation generalizationo This means that if a test development company is guaranteeing that apre-packaged test is sufficiently validated, it might not pass scrutiny foryour desired use.o Validation must be company, job and potentially facility specific.o Transportability.25
  26. 26. Issue: Employment test is more difficult than the jobitself.Facts: Company implemented a strength test which wascoupled with a reduction in the proportion of femaleshired from roughly 50% to roughly 15%.Holding: Circuit Court upheld finding of disparate impactand found that the use of the strength test neithermimicked the job functions nor led to a reduction inworkplace injuries (as alleged by Company)26
  27. 27. Issue: Employment test does not look for skills that areactually necessary and critical to the duties of the job.Facts: Company implemented an employment test whichexamined applicants’ mathematical and informationlocating ability for on-call labor positions in a warehouse.Outcome: OFCCP found that the employment test didnot test skills critical to such an entry-level position.Settled for more than a half million dollars in backwages, interest and benefits to a class of 250+ minoritieswho had failed the employment test.27
  28. 28. Issue: The employment test “expires” after technology improves.Facts: A cognitive test, which determined who got into anapprenticeship program, had a statistically significant disparateimpact on African-American applicants, so the Company(appropriately) had the test validated in the early 1990s. However,the test was not subsequently modified, even after lessdiscriminatory selection procedures became available.Outcome: EEOC and the Company entered into a court approvedsettlement which included a monetary payment of more than eightmillion dollars and a mandate that the test would be replaced by aselection procedure designed by a jointly-selected psychologist (atthe Company’s expense).28
  29. 29. Do not be scared to use an employment test:can efficiently accomplish “screening in” and“screening out” candidates, which will save acompany time and money in the long run.Inventory what tests are currently in use andevaluate adverse impact and validationmaterials.However, even if an employment test doesnot have adverse impact against a particulargroup then it still makes sense to have thetest validated for the specific position,company and facility and periodically re-validate the test as technology and usagechanges. 29
  30. 30. Please feel free to contact us if you have any questions:Matthew J. Camardella(631) 247-4639camardem@jacksonlewis.comMichelle L. Duncan(303) 892-0404michelle.duncan@jacksonlewis.com30
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