A Colorado federal judge recently ordered the City and County of Denver to pay $1.67 million to job applicants who alleged that Denver's employment screening tests had a disparate impact on black and Latino applicants. The class action was tried in an 8-day bench trial in April 2016 after Judge Krieger denied summary judgment.
Denver used ACCUPLACER tests published by College Board as pre-placement tests. The tests were developed to place students in college-level courses and were not validated for use in making hiring decisions.
This case is a rather expensive reminder that any type of employment test must be validated for employment purposes. The EEOC has issued guidance on the use of employment tests that provides some best practices for employers to follow.
The most important thing to think about is whether the test is really job-related. In other words, does the test actually relate to job skills that are required for the job? Then, the test must also be checked to insure that it does not have a disproportionate impact on any protected class.
Employers who have tests validated once cannot simply assume that the test is safe to use in perpetuity. If job duties or skills have changed for the position for which the test is being administered, then the test should be re-validated.
Finally, employers should not just assume that because a test is simple it does not need to be validated. Even a simple math test given to applicants who may handle money would need to be validated.
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