Chapter 6 Employment Testing

1. Chapter 6 Employment Testing

2. Forms of Testing • Polygraphs: Federal Employee Polygraph Protection Act of 1988 severely restricts use of polygraph in employment decisions by most employers • Integrity & personality tests: • Integrity tests measure a wide variety of constructs • Validity may be questionable but tests do not appear to adversely impact any protected groups • Personality tests appear to be non-discriminatory • Need to measure job-related personality dimensions • Tests should have face validity • Physical ability: Should measure only essential functions • Intelligence: Highly criticized as basis for disparate impact discrimination • Drug & alcohol: Covered under the Drug-Free Workplace Act of 1988

3. Forms of Testing • Medical testing: Permitted prior to employment but after an offer has been made • Must apply to all employees in the same job category • Genetic Testing: Evaluates an individual’s biological predisposition to certain diseases • May encourage discrimination based on fears and myths • HIV/Aids Testing: Inappropriate • Does not serve a legitimate business purpose • Does not indicate HIV status as of the day of the examination • Many arguments for and against HIV/AIDS testing for health care workers

4. Legality of Testing • Business necessity • Provide job analysis data to support • Job related • EEOC provides Uniform Guidelines on Employee Selection Process

5. Legality of Testingfor Ineligibility • Tests for ineligibility may be limited by state statutes or local ordinances • Employers may be liable for certain tort claims because of ineligibility testing • Invasion of privacy • Reckless or negligent infliction of emotional distress • Defamation • Wrongful discharge

6. Drug Tests 1 Drug testing in employment is used: Prior to hiring; As part of periodic medical exams; To verify that employees who have been through drug rehab programs are “clean”; Upon observation of aberrant behavior that create reasonable suspicion of drug use; And randomly.

7. Lanier v. City of Woodburn Facts: Plaintiff applied for a job as a part-time page at Woodburn’s library, and was conditionally hired, subject to a background check, medical exam and drug screening. She refused the drug test. The offer was withdrawn and she sued under the U.S. (4th Amendment) and Oregon Constitutions. Issue: Whether the City’s policy requiring suspicionless, warrantless, pre-employment drug tests (searches) of candidates of choice for city jobs was constitutional as applied. Held: No. This was not a safety-related job, and the City did not demonstrate a special need to screen a prospective page for drug use.

8. Just the Facts • City’s drug testing policy called for “random, unannounced drug testing of employees in safety-sensitive positions.” The City drug-tested all streets and sanitation department employees on a certain day, but one driver/laborer refused. Because he did not have a Commercial Driver’s License (CDL) and did not operate the largest pieces of heavy equipment, he was not subject to federal drug testing requirements for transportation workers. However, he did operate one-ton dump trucks, and dump trucks with plows, as part of his job. He had no accidents on the job and there was no history of drug-related accidents among city workers. In a City test two years earlier, the employee tested positive for marijuana use. The employee was terminated for refusing the drug test and sued. Were the employee’s constitutional rights violated? • Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007)

9. Drug Testing 2 There is no one rule that applies to whether an employer may use drug testing and under what circumstances. Drug testing laws vary from state to state. 10 states ban it or limit it to certain safety-related industries. Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA).

10. Drug Testing 3 Random drug testing by public employers is prohibited by the 4th Amendment to the U.S. Constitution and some state constitutions. But public employers may drug test for safety-sensitive jobs or upon reasonable suspicion. Drug and alcohol testing of employees in transportation-related jobs is required.

11. Government Employees • Federal, state and local employees are protected from government intrusion • Constitutional protection • The Fourth Amendment protects against unreasonable search and seizure • Collection of personal information has been considered a search • Detaining an employee may lead to charges of false imprisonment • The Court has not addressed the right to be free from mandatory pre-employment medical tests

12. Drug Testing Procedures 1 • The most common procedures required by state statutes are that employees must: • Be given written notice that drug testing is required • Be given copies of the employer’s substance abuse and drug testing policy • Be given test results in writing • Be given an opportunity to explain the result if the test is positive

13. Drug Testing Procedures 2 • Employers must: • Use licensed laboratories to analyze samples • Perform confirmatory tests, if requested, or allow employees samples for their own tests • Collect samples with due regard for employees’ privacy • Keep results of drug tests confidential

14. Drug Free Workplace Act 1 • Firms that contract with the federal government must comply. • The DFWA requires that employers: • Develop & communicate policies concerning drug use, sale or possession in the workplace • Inform employees about the dangers of drug use and options for counseling and treatment • Establish penalties for drug use violations • Report any drug use convictions

15. Smart Practice –Drug Testing 1 Notify employees if they are subject to drug testing. Notify employees of the circumstances under which drug testing will occur. Notify employees of the consequences of testing positive. Carefully label specimens Document chain of custody for samples. Respect the privacy of employees being tested.

16. Smart Practice –Drug Testing 2 Use reputable labs, and monitor their performance. Use confirmatory tests for positive results. Appoint a medical review officer to interpret results. After a positive result, seek information about medications the employee is taking. Take into account medications that may affect the result.

17. Smart Practice –Drug Testing 3 Give employees the opportunity to provide alternative explanations for positive results. Treat all drug tests as confidential. Provide rehabilitation drug programs.

18. Americans with Disabilities Act • Under the ADA, an employer must not fail to promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs. • The inquiry must be whether the employee isable to perform theessential functions of the job, with or without reasonableaccommodation. • If the applicant is able, the medical condition does not disqualify him.

19. Medical Examinations 1 A medical examination is any “procedure or test that seeks information about an individual’s impairments or health,” but which tests are medical exams is not always clear. If a test is a “medical exam,” then it is covered by the ADA. Under the ADA, prior to making a conditional offer of employment, an employer is prohibited from requiring applicants submit to medical exams.

20. Medical Examinations 2 Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are NOT job related. Medical exams of current employees are limited to job-related inquiries. As a practical matter, medical exams should be the last tests performed in the hiring process.

21. Medical Examinations 3 • See Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 2005 U.S. App. LEXIS 11142 (7th Cir. 2005)

22. HIV Tests & the ADA An HIV test may not be conducted until after a conditional offer of employment has been made. Because a person who is HIV positive is disabled under the ADA, a positive test cannot be used to deny employment, unless the person cannot perform the essential functions of the job, even with accommodation, or is a direct threat. Recommended: Except for few jobs, employers should not conduct HIV tests. They can rarely be used and may result in a claim of discrimination.

23. Genetic Testing The Genetic Information Nondiscrimination Act of 2008 forbids employers from using genetic tests or information to screen or discriminate against employees in health insurance and employment. Narrow exceptions permit employers to genetically monitor the biological effects of toxic substances in the workplace. The Act applies to employees covered by Title VII, and will take effect late in 2009. prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions The Act contains amendments to the Employee Retirement Income Security Act and the Internal Revenue Code.

24. State Genetic Testing Laws Relating to Employment • http://www.ncsl.org/programs/health/genetics/ndiscrim.htm

25. Polygraphs & Honesty Tests The Employee Polygraph Protection Act (EPPA) forbids private employers from requiring a pre-employment polygraph or other truth-telling devices, including voice stress analyzers. Exceptions exist for private employers in certain industries (controlled substances, nuclear power plants, etc.). However, such tests are permitted after an employee theft or other serious event. Pencil and paper honesty tests are permissible.

26. Scored Tests of Ability • Scored tests of ability are designed to screen out candidates with undesirable traits or to hire those with desirable traits. • They measure • intelligence, • aptitude, • specific job skills or knowledge, • work-related attitudes, • personality traits, strength and physical fitness • They must not be discriminatory.

27. Examining Test Results 1 • To avoid discrimination, compare the protected class composition of an applicant pool to the group that passed the test (applicant flow data). • To determine significance, EEOC follows the four fifths rule. • If the selection rate (the % of applicants to pass the test, and continue to be considered) for one protected group is less than 80% (4/5ths) of the selection rate for the protected group that was most successful, this is evidence of discriminatory effect.

28. Examining Test Results 2 • Note that the 4/5ths rule is arule of thumb, and not an absolute legal requirement. • The rule is valid only if there is a large enough applicant pool. • Employers must monitor and maintain records on the effects of testing procedures on different class groups.

29. EEOC v. Dial Corp. Facts: EEOC sued Dial on behalf of women not hired for positions lifting sausage, claiming adverse impact caused by a pre-employment weight lifting test. 38% of women and 97% of men passed the test. Because of injuries, Dial began safety measures in 1996 (injuries dropped), and the Work Tolerance Screen (WTS) in 2000, after which hires of women dropped to 8% in 2002. EEOC won at trial. Issue: Whether Dial showed business necessity, or content or criterion validity. Held: No. For validity to be demonstrated, the test must be representative of important aspects of job performance. The WTS was more difficult than the job itself, and screened out more women.

30. Job Related Tests • Even if a test has an adverse discriminatory impact, it may be used if the employer can establish that it is job related and consistent with business necessity. • Employer must establish validity • Does the test measure what it purports to measure? • Two primary ways to establish validity: • Content validity • Criterion validity

31. Content Validity 1 • A test has content validity if it requires the performance of the same behaviors and skills as the job in question. • Example: word processing test for secretarial job • Content validation cannot be used to validate tests of intangible traits (intelligence, personality). • Many jobs can be learned quickly. Testing that screens out people who could perform the job following minimal on-the-job training are not job-related and consistent with business necessity.

32. Content Validity 2 • Practical Advice for Employers • Use content validation tests as much as possible. • But do not use them to assess intangible characteristics, such as intelligence, personality, and other intangible characteristics. • Do not use content validation tests for tasks that could readily be learned on the job.

33. Criterion Validity • “Criterion” refers to a measure of job performance. • Criterion validation requires a demonstrated statistical association between performance on a test and performance on the job • Criterion validation studies may be: • predictive or • concurrent • A typical measure of association is the correlation coefficient. • A positive correlation indicates a link with job performance.

34. Validation Studies • A validation study provides evidence that a test is related to job performance. • Although not required by law, it is wise for an employer to establish validity before using a test. • The EEOC provides guidelines for how to proceed.

35. Scoring Tests • Tests may be scored pass/fail. • Passing scores may be ranked. • Employers may not use “race norming” or otherwise adjust scores based on protected class characteristics. • In determining appropriate cut-off levels, an employer should not set the bar artificially high, with discriminatory effects. • “Banding” of similar test scores (82-86) and treating them similarly has been upheld.

36. Accommodating the Disabled During Testing • The legal responsibility to provide accommodation begins pre-hire. • Unless the disability is obvious, the employer is not responsible for providing accommodation unless requested. • However, employers should tell candidates about the types of tests that will be used. • Finally, employers should document requests for accommodation.

37. What Would You Do? • You are the office manager of a branch of a sizable international company. A new directive has just come down from headquarters telling you that you should use a certain abilities test in screening all applicants for jobs in your office. You’ve reviewed the test, and come to the conclusion that it will likely have an adverse impact on applicants who speak English as their second language, people who constitute a significant portion of your labor pool. What would you do?