Many school districts I speak with across the country are examining how they recruit and hire great educators and other staff. I think this is positive as having a great recruiting and hiring process can ensure your organization is looking for new candidates in the right places and using the right measures to select the best person for the job!
As part of these conversations, many districts have mentioned creating their own selection “test” that asks new hires a series of questions, and then the district would use the results as one measure to inform hiring. There are also many vendors who offer such tests. It sounds like a great idea...and one that could be done for relatively low cost, right? Not always.
If districts are considering the use of selection test, they should be concerned about disparate impact.
Disparate impact is a term that HR people, employment law attorneys, and the Equal Employment Opportunity Commission (EEOC) use to describe when an employer uses tests and other measures to choose job applicants, and then “disproportionately excludes people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.”
The Americans with Disabilities Act of 1990 (ADA); the Age Discrimination in Employment Act of 1967; and Title VII of the Civil Rights Act of 1964 all note the use of discriminatory employment tests and selection procedures as illegal. According to the EEOC, selection measures could include but are not limited to, physical ability tests that measure strength or stamina; cognitive tests assessing math or reading comprehension, memory, reasoning, or the knowledge of a particular job or function; sample job tasks such as work samples or performance testing; personality and integrity tests measuring certain dispositions; credit checks; English proficiency exams; medical examinations such as psychological tests or assessments of physical health; and/or criminal background checks.
When it comes to tests, Title VII of the Civil Rights Act allows employers to ‘test’ candidates as long as the test are NOT “designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(h)) Title VII also places restrictions on altering or adjusting scores as well as having moving cut-off scores for different groups of applicants. (42 U.S.C. §2000e-2(l))
Disparate Treatment vs. Disparate Impact
Title VII prohibits both “disparate treatment” and “disparate impact” discrimination. The difference between the two is that one is intentional discrimination (disparate treatment) and the other occurs as an effect of testing.
According to the EEOC, disparate treatment cases typically involve evidence of bias such as discriminatory statements or people being openly treated differently due to their race, color, religion, or national origin. Further, an example scenario given by the EEOC on an employment facts sheet shows how this might look in reality. “Title VII forbids a covered employer from testing the reading ability of African American applicants or employees but not testing the reading ability of their white counterparts.” While an example, this was taken from a real court case of disparate treatment, Griggs v. Duke Power Company (1970).
Disparate impact is different from treatment. The EEOC notes that, “Title VII also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity."" An example scenario would be that an organization requires that all applicants pass a strength test and the result is that all women are disproportionately screened out. While an example, this is the situation behind the disparate impact case EEOC v. Dial Corp.
How do you know if your selection measures disparately impact a particular group? A statistical analysis! (And they say HR people don’t “do” math... psh!)
As a job candidate, asking bluntly if a selection test or question is “illegal” may put you on the employer’s do-not-call list (which, sadly, happens every day). Rather, if you are uncomfortable with a specific test, I suggest asking in a calm, cool, collected, and professional manner how it aligns to the job and how it is consistent with business necessity.
If you’re buying a test, be cautious and do your homework (just because others around you are buying a tool doesn’t mean you have to as well). It never hurts to check with your legal counsel. Further, ask the vendor for information on EEOC disparate impact. If they are unwilling to provide such information, or do not know what you are talking about, you should have a conversation with other leaders in the organization, including legal counsel, to decide the best course of action.
One vendor that develops selection tests for teacher candidates provides an EEOC Four-Fifths Report. It notes that:
According to the EEOC Four-Fifths rule, “A selection rate for any race, sex, or ethnic group which is less than four-fifths of the rate for the group with the highest rate will generally be regarded by federal enforcement agencies as evidence of adverse impact. The percent of applicants scoring at 72% or higher between each subgroup pair in the overall database is within the four-fifths guidelines; thus, the classification system indicates no disparate results.”
This is FANTASTIC and exactly what any organization should be looking for when considering a selection test. It also never hurts to collect your own data to ensure that the reports are accurate. If you’re creating a selection test, be cautious, do your homework, check with your legal counsel, and collect the appropriate data to ensure you’re not disparately impacting a group of individuals. Run the test yourself, and then check again with your legal counsel.
The bottom line as a K-12 Talent Manager is that if your organization is considering a selection test from a vendor or designing one in house, be very careful and do your due diligence, as one misstep could be very costly.
Note: This blog does not serve as legal advice. If you still have questions on disparate impact or treatment, contact your HR department. If you are in the HR department and have questions, call your district legal counsel for advice.
The opinions expressed in K-12 Talent Manager are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.