There is an elevated focus on diversity and inclusion initiatives. Companies are putting pressure on their human resources departments and recruitment programs to ramp up the diversity of their workforce. Before charging forward, it is best to pause to review the permissibility and effectiveness of recruiting programs, employment tests, and selection procedures.
Legal Obligations under Federal Law
California’s FEHA, the ADA, and Title VII all prohibit the use of discriminatory employment tests and selection procedures for hiring employees. The primary authority in this area is the Uniform Guidelines on Employee Selection Procedures (or “Uniform Guidelines”) set forth in 26 Code of Federal Regulations section 1607.1. The Uniform Guidelines were created to assist employers in complying with federal employment laws and apply to public and private employers that are covered by one or more federal equal opportunity laws (EEO, ADA, etc).
The Uniform Guidelines apply to any processes or procedures used in making employment decisions. A process or procedure ranges from application forms and questionnaires to a candidate’s interview itself. It is not limited to a specific “test” or written exam. The Uniform Guidelines define biased or unfair assessment procedures as those which one race, sex, or ethnic group characteristically obtains lower scores than members of another group and the differences in the scores are not reflected in differences in the job performance of members of the groups. The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment opportunities of members of any race, sex, or ethnic group are discriminatory.
These are heavily scrutinized by administrative agencies. It is important for employers to evaluate the impact of the metrics of the examination used. Employers are required to maintain records that evidence the impact the tests and selection procedures have on opportunities of certain racial, gender, or ethnic groups for employment. The Uniform Guidelines identify specific forms available to assist employers with maintenance of this information. When the data collected reflects an adverse impact on a particular race, gender, or ethnic group, the federal government steps in and evaluates the employer’s entire selection process to determine the existence of an adverse impact.
The key to success in using these hiring tools is to administer the “assessment” uniformly (not make exceptions for certain candidates), ensure that the information sought is more useful than harmful to a particular group of applicants, and that the means of measuring success is more beneficial than it is prejudicial. Employers should not rely too much on any one test to make an employment decision. Understanding the knowledge, skill, ability, characteristic, or personal trait that the test measures is key to evaluating the “assessment tool” at issue. As an example, employers should avoid making employment decisions based on knowledge, skills, or abilities learned in a brief orientation period. A pop quiz, math question, or on the spot hypothetical may have a disparate impact on candidates with a learning disability. Educating managers and hiring personnel on proper interview practices is key to avoiding liability in this area.
Evaluating the whole person as a candidate is more valuable in the long-run. Use only assessments that are unbiased and fair to all groups. At times, the existence of a biased assessment is only revealed when evaluating the “score” of a specific group under each category. Many of these biases are implicit and empirically evaluating the impact of statistical data is the easiest way to see where the hiring process is eliminating a pool of qualified, underrepresented candidates.
Affirmative Action Programs
Notably, the Uniform Guidelines advocate for voluntary affirmative action programs to combat an adverse impact of an employer’s selection procedures. This is a logical conclusion as the purpose of the Uniform Guidelines is to avoid adverse or a negative impact on these historically underrepresented groups. At times, affirmative action programs recruiting procedures designed to attract members of underrepresented races, sex, or ethnic groups are necessary to bring an employer in compliance with federal law.
If your organization is establishing or building upon an existing Diversity and Inclusion Recruiting Program, the Uniform Guidelines should be carefully reviewed. The Uniform Guidelines provide a comprehensive Test and Assessment for employers to use in evaluating your recruiting programs, employment tests, and selection procedures at http://uniformguidelines.com/testassess.pdf.
Co-authored by: Sarah Goldstein and Alexis Sadakane