The Equal Employment Opportunity Commission (EEOC) announced a lawsuit against Walmart for screening out employees (not applicants) using a training program and assessment the EEOC alleges unfairly discriminated against people with disabilities and was not related to either the employees’ job duties or job performance.
Walmart will likely lose or settle unless they can produce evidence the assessment in question was properly “validated.” The EEOC has determined the assessment lacks validity, and is moving forward with legal action, suggesting there is little chance of validation evidence emerging.
The EEOC enforces the Americans with Disabilities Act (ADA) which prohibits discrimination in employment against people with disabilities. If an employment selection practice, like an employment test, tends to screen out otherwise qualified individuals with disabilities, it must be shown to be job-related and a business necessity to be permitted. Employers demonstrate the job-relatedness and business necessity through a somewhat complicated process called, “validation.”
The OFCCP enforces Section 503 of the Rehabilitation Act for federal contractors, which actually pre-dates the ADA by almost two decades. But the two laws are nearly identical (except for Section 503’s affirmative action requirements) and the OFCCP enforces Section 503 under ADA principles and regularly inquires into employers’ assessments as well.
Federal contractor employers have an affirmative duty to monitor employment selection processes, including employment tests, for potential discrimination. And if an employment test is found to be discriminatory, the employer has an affirmative duty to either validate or modify/eliminate the offending test. Employers that are not federal contractors do not have an affirmative duty to do either of those things (but should be doing so voluntarily as part of their legal risk mitigation strategy).
If your organization utilizes employment assessments or tests, either at the application stage or during the course of employment, you can monitor the effects of those tests using “impact ratio analyses” (IRAs) which evaluate the differences in “selection” or “pass” rates among the various groups according to legally protected characteristics.
There are several free “IRA calculators” out there, but some are better than others. Not surprisingly, we recommend Biddle’s free “Impact Calculator.” If you are unsure how to use it, cruise on over to our free compliance Encyclopedia for more.
If your IRAs are coming back “hot,” meaning they are showing significant differences in passing rates that cannot be explained by random chance, then you’re going to need to look into validating that test. Unfortunately, this is not something you can “DYI.” You need qualified experts with Industrial/Occupational Psychology PhDs. And, again, Biddle just happens to have a deep bench, and nearly half a century invested in developing and validating employment assessments. If you want to learn more, drop us a line at info@Biddle.com.
