Facts About Validation
Introduction
This document was prepared in
conjunction with Hire Success' legal counsel to provide
information regarding the often asked question: "Is the use of
pre-employment testing legal?" and in particular, "Are the HIRE
SUCCESS™ Personality and Aptitude Tests Legal?"
We encourage each employer considering this issue to seek
professional legal counsel, as this document is not meant to
express any legal opinion or position, rather it was written to
provide factual information which each employer should consider
and discuss with their own legal counsel.
The foundation for this question certainly goes back to Title
VII of the Civil Rights Act of 1964, and to a very important
case in 1971 argued before the United States Supreme Court known
as
GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971).
Much has been written about the legality
of employment screening tests, especially by some companies
involved in the development and sale of pre-employment tests. In
many of these cases, the test vendors assert that their test is
legal, but tests from their competitors may NOT be legal and
thus might place the employer "in harms way".
Because so much "misinformation" has been distributed,
especially via the Internet, our objective is to try to present
the following facts which we believe should be considered before
selecting any testing system, but with particular emphasis on
the HIRE SUCCESS™ Personality and Aptitude Tests.
Hiring Employees Without Testing
An important case you may wish to discuss with your legal counsel is WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988). This case involved a charge of discrimination when NO testing was involved. The Supreme Court's opinion was that:
"…an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices (interviews) with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge."
EEOC Guidelines
The Equal Employment Opportunity Commission (EEOC) Guidelines must also be taken into account, as they were considered in the Supreme Court's ruling from Griggs vs. Duke Power on this matter. Footnote 9 stated:
EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets `professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII." The EEOC position has been elaborated in the new 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).
In a further conclusion in this case, the Court went on to say 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.'"
We also believe the statement went on to speak of tests like the Hire Success™ Personality Profile which does NOT test aptitude, intelligence or skills when it said:
"Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing but are nevertheless job related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices and therefore should not attempt to do so. Pp. 997-999."
Applicability Without Testing
GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971) has played a pivotal role in how employers look at testing applicants and employees. The first step is to understand the scope of this particular decision and what was alleged in the lawsuit. The following is from the first paragraph of the Supreme Court's opinion:
"Negro employees at respondent's generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent's requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While 703 (a) of the Act makes it an unlawful employment practice for an employer to limit, segregate, or classify employees to deprive them of employment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, 703 (h) authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate."
The issue being addressed in this case
was brought about because it was believed that the use of
"intelligence tests" were being used as a tool to discriminate
against a protected group under Title VII of the Civil Rights
Act of 1964 (the "Act"). The issue of testing for "personality"
was not the issue, rather only "intelligence". The Hire Success™
Personality Profile does not take age, race, gender, or any
other protected element, into consideration in the development
of the Personality Profile and uses no measure, or means to
measure, "intelligence" as part of determining a person's
personality.
A further indication that the Hire Success™ Personality Profile
is not a discriminatory tool, is the personality evaluation and
results are based exclusively on data provided by the
self-analysis of the person whose personality is being
evaluated. Thus, the applicability of the input data is solely
dependent on the accuracy and truthfulness of the person taking
the test. Because no information regarding the person's age,
race or education is considered in the computer software
performing the test analysis, it would be impossible for the
computer to discriminate against any legally protected group of
people.
Aptitude tests developed for the Hire Success™ system, which
measure a person's knowledge of a particular subject, could be
interpreted by some as a test of "intelligence", and thus could
be construed as being relevant to Griggs vs. Duke Power.
However, the Court's opinion stated "…703 (h) authorizes the use
of any professionally developed ability test, provided that it
is not designed, intended, or used to discriminate."
Each of the Hire Success™ Aptitude tests have been
professionally developed in conjunction with individual(s) who
have considerable expertise in the subject of the test material.
In particular, tests related to academic levels, which could
most easily be construed as a test of intelligence, were
developed by an individual holding a Doctorate degree in
education and who used standardized "Scope and Sequence" charts
to develop grade-specific questions which range from the 4th to
14th grade level. We believe the development of the Hire
Success™ Aptitude tests meet the criteria set forth in 703 (h)
of the Act and the Supreme Court's ruling in this case.
EEOC Guidelines
The Equal Employment Opportunity Commission (EEOC) Guidelines must also be taken into account, as they were considered in the Supreme Court's ruling from Griggs vs. Duke Power on this matter. Footnote 9 stated:
EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets `professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII." The EEOC position has been elaborated in the new 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).
Again, the Hire Success™ Personality
Profile is not "ability-based" and is not designed to "measure
the applicant's ability" in any way. Rather, the Personality
Profile reflects applicant "traits" based on the applicant's own
self-measurement of 100 characteristics. Therefore, if the
applicant, for example, described him/herself as not being very
detail oriented, the "trait" may be important to the employer,
even though the applicant may have an outstanding "ability" in
the area of mathematics. If the job for which the applicant was
applying was an accounting position, the ability and knowledge
of math, although very important, may not be sufficient if many
mistakes are made because the person lacks the detail
orientation necessary.
If key traits are identified (refer to "Proper Use of Employment
Testing" below), they represent another "facet" of the
applicant's overall job makeup that is complementary to
"ability" if it further enhances that ability to be successful
on the job.
The Aptitude test(s), must be evaluated as a different type of
tool than the Personality Profile, as the Aptitude test(s) are a
way to measure an applicant's "ability". As indicated in the
EEOC Guidelines, it is not sufficient that the test be
professionally developed, it must ALSO be relevant and
predictive to the success of the job. Thus, each employer must
thoroughly examine all of the questions on ANY aptitude test to
make sure it is testing for abilities related to the job being
considered, and are indicative (predictive) of success for that
job based on the outcome of having validated that test with that
job within the company administering the test.
This is why each employer should evaluate carefully how various
tests are administered. It would no doubt be easy to show that a
math test was important for an accounting position, but perhaps
the math or vocabulary test may be irrelevant to operate a
fork-lift in the warehouse or be on the housekeeping staff at a
hotel. Only those tests relevant to the position, and that are
predictive of success on the job, should be administered.
Further, these tests should always be administered to all
qualified candidates in a non-discriminatory manner.
Held In Griggs vs. Duke Power
The following two elements were upheld by the Supreme Court in the case of Griggs vs. Duke Power, and should be considered before using any pre-employment test.
1. "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."
2. "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."
Proper Use of Employment Testing
The position of Hire Success™ is that
if any of our tests are to be used as a pre-employment testing
tool, that the following procedures should be followed by each
employer administering the tests:
1. Test ALL applicants who apply for a particular job and meet
all other minimum requirements for the job. The application of
the test should NOT be used selectively as a means for either
justifying a candidate when another has not had the opportunity
to take the test(s), or to adversely effect someone who has
taken the test(s) in favor of another applicant who was not
required by the employer to take the same test(s).
We are not suggesting that all applicants must be tested if they
are not otherwise qualified. For example, if an applicant for a
chemical engineering position had no education, background or
experience in chemistry, and having that background was a job
requirement, we do not believe it would be necessary to provide
them with other pre-employment tests as they would be
disqualified by some other means. We ARE, however, suggesting
that all applicants, regardless of race, age, education, etc.,
who share similar qualification for the job MUST be offered the
same opportunity to take the pre-employment test(s).
2. Each Personality Profile that will be administered in a
pre-employment environment by an employer should be administered
to employees currently holding the same or similar position in
order to establish a "baseline" from which to compare test
results of job applicants. We believe that developing this
"baseline" information, if done fairly and properly, will meet
the criteria in number two above prescribing "… giving them
controlling force unless they are demonstrably a reasonable
measure of job performance.".
What will be important is to identify the job-related
Personality attributes common among employees who consistently
apply these attributes successfully on the job and apply the
Baseline results fairly using that data as a consideration for
employment. It should not, however, be used as the sole
determining factor for employment. Personality information is
only one aspect of evaluation, like background, education and
experience.
Chief Justice Burger said, in the delivery of the Court's
opinion that "… Congress has placed on the employer the burden
of showing that any given requirement must have a manifest
relationship to the employment in question. [401 U.S. 424, 433]"
Hire Success™ believes this pivotal point is why it is so
important that each employer use each tool appropriately and
responsibly, and when using the Personality Profile, test
existing employees, where possible, to develop valid "baseline"
criteria. For example, if a Company was hiring for a sales
position selling ads in a local magazine, the Company may be
easily able to determine that the most successful sales people
in their company may have a particular primary personality type
and have strong traits in areas like "Persuasiveness",
"Extroversion", "Independence", "Aggressiveness", etc. However,
if it can not be established that it is important to the job to
be literate in computer terminology, then administering the
computer knowledge aptitude test would not have the "manifest
relationship" to the job and thus using that test in a
pre-employment environment would be inappropriate.
If, however, the person was hired, and later applied for a
different job within the company where computer knowledge WAS
important to the successful completion of the job, then
administering something like a Computer Knowledge test would be
appropriate when considering people for promotion, transfer or
another job.
Chief Justice Burger's concluding statement from Griggs vs. Duke
Power when delivering this opinion was: "Nothing in the Act
precludes the use of testing or measuring procedures; obviously
they are useful. What Congress has forbidden is giving these
devices and mechanisms controlling force unless they are
demonstrably a reasonable measure of job performance. Congress
has not commanded that the less qualified be preferred over the
better qualified simply because of minority origins. Far from
disparaging job qualifications as such, Congress has made such
qualifications the controlling factor, so that race, religion,
nationality, and sex become irrelevant. What Congress has
commanded is that any tests used must measure the person for the
job and not the person in the abstract."
We believe the Hire Success™ Personality and Aptitude tests are
valid and accurate tools for measuring a job applicant and is
not in the abstract, and thus provides employers with an
efficient, simple, accurate and cost-effective tool for general
employment testing. We must, however, again stress the
importance of each employer seeking the advise of their own
legal counsel and using common sense in the appropriate and
legal administration of any test and the application of any
information the test might reveal.