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The materials contained in this presentation were prepared

by the law firm of Jackson Lewis LLP for the participants’

reference in connection with education seminars presented

by Jackson Lewis LLP. Attendees should consult with

counsel before taking any actions and should not consider

these materials or discussions about these materials to be

legal or other advice.

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Represents management exclusively in every aspect of

employment, benefits, labor, and immigration law and

related litigation

Over 700 attorneys in 50+ locations nationwide

Current caseload of over 5,000 litigations and

approximately 300 class actions

Founding member of L&E Global

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Using specially designed proprietary software, our diverse

practice group of 40 lawyers and paraprofessionals

prepares over 2200 affirmative action plans (“AAPs”)

annually for our federal contactor clients. We defend

against the imposition of citations and allegations of

discrimination in connection with audits by the Office of

Federal Contract Compliance Programs (“OFCCP”) and

offer liability avoidance services, including vulnerability

audits and statistical analyses employing the methodology

used by the OFCCP to identify potential discrimination.

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Matthew Camardella is a Partner in the Long Island, New York office of Jackson Lewis

LLP, and a member of the Firm’s Affirmative Action Practice Group. He directs the

preparation of more than 400 AAPs each year and has defended hundreds of OFCCP

audits for a broad range of employers across the country. In addition, Mr. Camardella

serves as the Practice Group lead on responding to OFCCP allegations of class-based

discrimination. He spends significant time counseling clients about the design and

implementation of company-wide AAP structures, applicant flow tracking systems,

compensation practices and other complex “real world” compliance issues.

Mr. Camardella also is General Counsel to the American Association for Affirmative

Action (AAAA) and serves as Vice-Chair of the Philadelphia “Liberty” Industry Liaison

Group (ILG). His work with AAAA and ILG keeps him abreast of OFCCP enforcement

trends.

Mr. Camardella joined Jackson Lewis in September, 1997. He received a B.A. from the

College of the Holy Cross in 1993 and graduated with honors from Hofstra University

School of Law in 1997. While at Hofstra, he was Editor-in-Chief of the Hofstra Labor Law

Journal and received the Award for Outstanding Performance in Labor and Employment

Law. He is admitted to the New York State Bar.

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Michelle Duncan is a Partner in the Denver office of Jackson Lewis. Michelle focuses her

practice on representing employers in affirmative action and employment discrimination

matters before OFCCP, workplace safety and health matters before OSHA and minimum

wage and overtime matters before the U.S. Department of Labor’s Wage and Hour

Division.

Michelle joined the firm after working for nearly fourteen years as a trial attorney with the

U.S. Department of Labor, Office of the Solicitor. She served in the National Office in

Washington, D.C., as well as in the Dallas and Denver Regional Offices.

During her tenure with the U.S. Department of Labor, Michelle was widely regarded as a

leading expert on OFCCP litigation. She litigated numerous OFCCP cases and provided

ongoing counsel to high-level OFCCP officials.

Michelle received her Bachelor of Arts degree in American Public Affairs from Michigan

State University, James Madison College in 1993. In 1998, she received her juris

doctorate degree, cum laude, from the American University, Washington College of Law.

She is a member of the bar in Maryland and Colorado.

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What Is a Test

Why Use Tests

Legal Theories of Discrimination

Testing Your Test

Common Issues with Validation

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Any selection tool that rates, ranks or scores:

o Examples:

• Cognitive

• Personality

• Pen/paper

• Electronic

• Interviews

• Background checks (criminal, credit, etc.)

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Increased competition for jobs (rise of

online application systems and high

unemployment rates).

Tests are an efficient way to “screen

out” candidates who lack the

knowledge, skills and abilities

necessary to perform a specific job

and “screen in” those individuals most

likely to succeed.

Tests can also help employers identify

current employees for promotion.

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As employment testing has become more prolific and sophisticated, the use of

such tests by employers has also faced increased scrutiny, especially from

Equal Employment Opportunity (EEO) enforcement agencies.

304 charges of discrimination stemming from employment testing and

prescreening background checks in 2007, total number of charges filed has

steadily increased since then.

March 2006 (EEOC’s Systemic Task Force Report): “[C]ombating systemic

discrimination should be a top priority at [the] EEOC[.]”

2011 EEOC Annual Report: The Agency “places a high priority on issues that

impact large numbers of job seekers, and employees[.]

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Disparate Treatment

o Individual

oPattern or Practice

Disparate Impact

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Exists when one group or individual is treated differently

than another group or individual “because of” race,

color, religion, sex, national origin, disability or veteran

status.

Proof of intent or discriminatory motive is REQUIRED!

This is not likely to occur in the employment testing

context because it would require that a test only be

given to one group of people or be specifically designed

to screen out individuals on the basis of a protected

characteristic.

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A facially neutral policy or practice that is uniformly

applied produces a significant adverse impact on a

protected group.

o Requiring a college degree

o Employment test

o Physical requirement (such as a lifting)

Title VII of the Civil Rights Act of 1964 generally

forbids the use of employment tests that are

discriminatory in effect.

Griggs v. Duke Power (1971) 13

Disparate Impact:

XYZ, Inc. believes that a healthy

workforce is a happy and productive

workforce. XYZ has a policy that to be

considered for employment, applicants

must be able to jump high enough to

touch the net of a basketball hoop.

8 of every 10 men pass the jump test.

2 of every 10 women pass the jump test.

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“A substantially different rate of selection in hiring,

promotion or other employment decision which works to the

disadvantage of members of a race, sex, or ethnic group.”

-Uniform Guidelines on Employee Selection Procedures

(1978) (FAQ #10)

80% or 4/5th Rule of Thumb – Uniform Guidelines

(EEOC).

2 Standard Deviations – Preferred by statisticians and

many courts.

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“Standard Deviation” – how much variation or

“dispersion” exists from the mean or average.

Low standard deviation indicates the data points

tend to be very close to the mean (i.e., similar).

High standard deviation indicates data points are

dispersed over large range of values.

Two standard deviations signifies the point at which

statisticians say a legitimate trend exists, as

opposed to a chance relationship (with a reasonable

level of certainty).

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Four variables are entered into the analysis:

1. Number of focal group members who pass the test

2. Number who do not pass the test

3. Number of reference group members who pass the test

4. Number who do not pass the test

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Analysis Rate for

Disfavored

Group

Rate for

Favored Group

80%

Rule

Standard

Deviation

Minority v.

Non-Minority

2/15

.13

5/20

.25

.53 0.85

Minority v.

Non-minority

2/50

.04

5/20

.25

.16 2.65*

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NOTE: Just because this is above 2.0 standard deviations does not mean that

an employer is automatically liable, but it does mean that the employer must

take additional steps in order to continue using the test without being liable.

An employer may use a test that has an adverse impact on

protected groups IF it can show that the assessment has a manifest

relationship to the position at issue.

o Albermarle Paper Co. v. Moody (Supreme Court, 1975)

So, companies can use tests that have an adverse impact, provided

that the employer can show that it is not being used to discriminate

intentionally and can demonstrate that the test is job-related and

consistent with the needs of the employer from a business stand

point (i.e., have the test validated).

Uniform Guidelines on Employee Selection Procedures (1978)

provide technical rules for validation and require it if an employer

finds adverse impact against a particular gender or racial or ethnic

group.

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The employer must show either

o That the test accurately reflects the tasks performed on the job

OR

o That the test requires the test-taker to demonstrate that he or

she possesses the necessary underlying knowledge, skills or

abilities to successfully perform the job.

Example: A warehouse worker must repeatedly lift 50 lb

boxes, so the test should not relate to overall health or

whether the applicant can lift 150 lbs.

o The test cannot be considerably more difficult than the job itself.

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Uniform Guidelines on Employee Selection Procedures –

rule book on validation requirements for EEO

enforcement agencies.

Content

o Non-statistical.

o Degree to which the content of the test matches content domain

of the job.

o Typically involves subject matter experts (SMEs) evaluating test

items against the test specifications.

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Criterion

o Correlation between the test and criterion variable(s).

o Compares the test with other measures or outcomes (criteria)

already held to be valid (e.g., measures of job performance).

o Concurrent Validity Evidence – Test data and criterion data

collected at the same time.

o Predictive Validity Evidence – Test data collected first (to predict

criterion data collected later).

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Construct

o Measures the extent to which developed tests actually measure

what they purport to.

o Statistical analysis of the test and the relationships between

different answers.

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A validated test will be:

o Reliable;

o Fair;

o Minimize the potential for adverse impact; and

o Validated through studies that are large enough to establish a

confident reliability coefficient.

Also, should be validated in the context for which it will

be used and should not reflect any racial, cultural or

gender stereotypes.

Plus the test must be coupled with a back-and-forth

reasonable accommodation dialogue, if necessary, for

individuals with disabilities. 24

No consideration of reasonable alternatives

o If a properly validated test creates adverse impact then an employer

should consider if there are alternative testing means which produce

less adverse impact.

Validation study outdated

o As job responsibilities change and/or technology improves, a previously

validated test may “expire.”

o Update required every 5 years.

Reliance on validation generalization

o This means that if a test development company is guaranteeing that a

pre-packaged test is sufficiently validated, it might not pass scrutiny for

your desired use.

o Validation must be company, job and potentially facility specific.

o Transportability.

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Issue: Employment test is more difficult than the job

itself.

Facts: Company implemented a strength test which was

coupled with a reduction in the proportion of females

hired from roughly 50% to roughly 15%.

Holding: Circuit Court upheld finding of disparate impact

and found that the use of the strength test neither

mimicked the job functions nor led to a reduction in

workplace injuries (as alleged by Company)

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Issue: Employment test does not look for skills that are

actually necessary and critical to the duties of the job.

Facts: Company implemented an employment test which

examined applicants’ mathematical and information

locating ability for on-call labor positions in a warehouse.

Outcome: OFCCP found that the employment test did

not test skills critical to such an entry-level position.

Settled for more than a half million dollars in back

wages, interest and benefits to a class of 250+ minorities

who had failed the employment test.

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Issue: The employment test “expires” after technology improves.

Facts: A cognitive test, which determined who got into an

apprenticeship program, had a statistically significant disparate

impact on African-American applicants, so the Company

(appropriately) had the test validated in the early 1990s. However,

the test was not subsequently modified, even after less

discriminatory selection procedures became available.

Outcome: EEOC and the Company entered into a court approved

settlement which included a monetary payment of more than eight

million dollars and a mandate that the test would be replaced by a

selection procedure designed by a jointly-selected psychologist (at

the Company’s expense).

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Do not be scared to use an employment test:

can efficiently accomplish “screening in” and

“screening out” candidates, which will save a

company time and money in the long run.

Inventory what tests are currently in use and

evaluate adverse impact and validation

materials.

However, even if an employment test does

not have adverse impact against a particular

group then it still makes sense to have the

test validated for the specific position,

company and facility and periodically re-

validate the test as technology and usage

changes. 29

Please feel free to contact us if you have any questions:

Matthew J. Camardella

(631) 247-4639

camardem@jacksonlewis.com

Michelle L. Duncan

(303) 892-0404

michelle.duncan@jacksonlewis.com

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