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New EEOC Fact Sheet on Employment Tests and Selection Procedures

Posted by Frank Steinberg | Jan 17, 2008 | 0 Comments

The EEOC is trying to be helpful.

I know.  I know.  "They're the government and they're here to help us."  But this time they actually are being helpful to business.  What on earth about, you ask?  Hiring and promoting, and how to do it without running afoul of the legal web that waits to ensnare the unwary. 

The EEOC has just published a revised Fact Sheet entitled "Employment Tests and Selection Procedures."  It's a helpful discussion of how tests can be used lawfully to help screen employees for hiring and promotion. 

Among the tests discussed:

  • Cognitive tests.
  • Personality tests.
  • Medical examinations.
  • Credit checks.
  • Criminal background checks.

They're discussed in the context of the commonly applicable laws:

  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act [ADA].
  • The Age Discrimination in Employment Act [ADEA].

There are helpful (if basic) explanations of the disparate treatment and disparate impact theories of discrimination, and a list of Employer Best Practices.

Bear in mind that the EEOC Fact Sheet is not legal advice.  It should not be relied upon to provide specific answers to particular problems.  Look at it as a guide to where the pitfalls are located, not as advice on what testing you can safely perform for what position. 

In fact, reading the Fact Sheet can be sobering.  It reminds us of just how complicated the law in this area can be, and of the financial risk if you make a mistake.

So yes, the government is doing it's best to be helpful.  But in doing so it reminds us of the risks of forging ahead into a testing program without thinking through the consequences.  Which in turn brings to mind another familiar saying: "Use only under adult supervision."

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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