Equal Employment Opportunity – Aspects of Testing

There are various laws bars discrimination with respect to race, color, age, religion, sex, disability, and national origin. For example a federal court recently ruled that Dial Corp discriminated against female job applicants at a meat packing facility by requiring employees to take a pre employment strength test. The test had a disparate impact on women. Furthermore, there appeared to be no compelling need for strength on the job. With respect to testing the laws boil down to this: Once the plaintiff shows that one of your selection procedures has an adverse impact on his or her protected class, you must demonstrate the validity and selection fairness of the allegedly discriminatory test or item. Adverse impact means there is a significant discrepancy between rates of rejection of members of the protected groups and others. You must then be able to prove (1) that your tests are related to success or failure on the job (validity) and (2) that your tests don’t unfairly discriminate against minority or non-minority subgroups.


Assume that you’ve used a test and that a rejected minority candidate has demonstrated adverse impact to the satisfaction of a court. (One way is to show that the selection rate for, say, the applicant’s racial group, was less than four fifths of that for the group with the highest selection rate).

The employer would then have three alternatives with respect to its testing program. One is to institute a different, valid selection procedure that does not have an adverse impact. The second is to show that the test is valid – in other words, that it is a valid predictor of performance on the job. Ideally, you would do this by conducting your own validation study. In any event, the plaintiff would then have to prove that your explanation for using the test is inadequate.

A third alternative in this case aimed at avoiding adverse impact rather than responding to it is to monitor the selection test to see if it has disparate (adverse) impact, if not, it’s generally permissible to use the device , even if it’s not valid – but why would you want to?

Employers can’t avoid EEO laws just by avoiding tests: EEO guidelines and laws apply to all selection devices, including interviews, applications, and references. You could have to prove the validity fairness and job relatedness of any screening or selection tool that has an adverse impact on a protected group.

A complete discussion of the APA’s Ethical Principles of Psychologists and Code of Conduct is beyond the scope of this book, but a summary of some of its headings helps to illustrate its concerns. Main subjects headings include: competence; integrity; respect or people’s dignity; concern for others’ welfare social responsibility; maintaining expertise, nondiscrimination; sexual harassment; personal problems and conflicts avoiding harm, misuse of psychologists influence multiple relationships exploitation of relationships delegation to and supervision of subordinate’ competence and appropriate use of assessments and interventions; obsolete tests; maintaining confidentiality; minimizing intrusions on privacy; confidential information and databases; familiarity with the ethics code; conflicts between ethics and organizational demands; and reporting ethical violations.

Legal Privacy Issues:

There are also privacy protections embedded in US and common law. At the federal level, certain US Supreme Court decisions do protect individuals from intrusive government action in a variety of contexts. Furthermore, the Federal Privacy Act gives federal employees the right to inspect personnel files, and limits the disclosure of personnel information without the employee’s consent, among other things.

The common law provides some protection against disclosing information about employees to people outside the company. The main application here involves defamation (either libel or slander). If your employer or former employer discloses information that is false and defamatory and that causes you serious injury, you may be able to sue for defamation of character. Even if true, courts may view it as invasive and find for the plaintiff. Guidelines to follow here include:

1) Train your supervisors regarding the importance of employee confidentiality.
2) Adopt a need to know policy. For example if an employee has been rehabilitated after period of drug and that information is not relevant to his or her functioning in the workplace then a new supervisor may not need to know.
3) Disclose procedures. If you know your firm can’t keep information such as test results confidential you may limit your liability by disclosing that fact before testing. For example, if employees who test positive on drug tests will have to use the firm’s employee assistance program, explain that before giving the tests.