Employers: If the OFCCP Comes Knocking Can You Substantiate the Use of Pre-Employment Tests?

Under the Uniform Guidelines on Employee Selection Procedures (“UGESP”) adopted by the OFCCP, a federal contractor with a pre-employment testing procedure that is determined to have an adverse impact on a protected group must show that the test is “job-related and consistent with business necessity” to avoid liability under Executive Order 11246.  To show this, an employer must demonstrate that the test has been validated for the purpose for which it is being used.

Accordingly, the OFCCP frequently scrutinizes the discriminatory effects of pre-employment tests.  In fact, this past summer, a food manufacturer agreed to pay $550,000 to settle allegations by the OFCCP that the company used a pre-employment test that had a discriminatory adverse impact on a class of minority applicants rejected for laborer positions.  In a complaint filed by the OFCCP against the food manufacturer, the OFCCP alleged that the food manufacturer could not substantiate its claim that its WorkKeys exam was related to the job functions of on-call laborers.

The WorkKey exam tested applicants’ math, workplace observation, and location skills.  The OFCCP took the position that WorkKeys was not job-related because the skills tested were not critical to the entry-level tasks performed by on-call laborers, which tasks included maintaining sanitation at the facility, inspecting products, and monitoring equipment.  Although the food manufacturer produced validity reports for the WorkKeys test, the OFCCP determined that the evidence did not support the validity of the testing component used to select individuals for on-call positions in the Labor Job Group.

Lessons for Employers:  Exercise caution when using pre-employment tests.  If you use such tests ensure that the tests assess skills that are critical to the positions that are being filled and that the tests have been validated for such uses.

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