Speech to VMA re Employee Testing

August 9, 2005

Thomas J. Leek, Esq.

Cobb & Cole

386-323-9210



  1. INTRODUCTION - Standardized employment tests


    1. First developed during Word War II by the Army to measure intelligence. The Army asked psychologists to develop tests to match recruits with appropriate jobs.


    2. The use of these tests blossomed in the 1950s with private employers as a way to gather information on job applicants and candidates for promotion.


    3. The practice resulted in over emphasis and reliance on these test scores and created unintended discriminatory consequences, including the exclusion of women and minority candidates from hire and promotion.


    4. Fair employment policy began to emerge in response to this negative impact testing had on these groups.


  2. DISCUSSION


    1. GENERAL - Today, employers are allowed to do some testing of job applicants, but both federal and state laws impose numerous restrictions on what an employer may do.


    2. PROTECTED CLASSES - Florida state laws and federal laws name different protected classes. Title VII protects individuals based on race, color, religion, sex, or national origin. The Florida Civil Rights Act protects individuals based on race, color, religion, sex, national origin, age, handicap, or marital status. Florida Statutes §760.10.


  3. TESTING ISSUES -


    1. Title VII - The main federal statute prohibiting job discrimination is Title VII of the Civil Rights Act of 1964. 42 U.S.C. §2000e-2. Title VII, which prohibits employers from discriminating in the hiring process based on race, color, religion, sex, or national origin, applies only to employers with 15 or more employees.


      1. In order to comply with Title VII, an employer must make employment decisions on the basis of business necessity, and not upon a particular individual's membership in a protected class.


      2. BFOQ - Title VII allows an employer to make a hiring decision based on sex, religion or national origin if the employer can prove that being a particular sex, religion or national origin is a bona fide occupational qualification (BFOQ) for the job in question. The employer must prove that his hiring decision falls within the very narrow limits allowed by the BFOQ defense. The employer must show both:


        1. that all persons of the excluded class would be unable to perform the requirements of the job; and


        2. the requirements of the job directly relate to the essence of the employer's business.


      3. The evidence that the employer presents must be objective and not based on stereotyped beliefs about persons in the protected class.


LITIGATION NOTE: Disparate Treatment and Disparate Impact - Plaintiffs may prevail on an employment discrimination claim using one of two theories. Disparate treatment, requires proof of either a discriminatory intent on behalf of an employer, or other evidence of discrimination. Id. Disparate impact, requires a plaintiff to show an adverse impact on a protected class absent a discriminatory motive.



    1. The Americans with Disabilities Act (ADA) - The ADA protects those individuals who have a long-term physical or mental impairment that substantially limits a life activity. 42 U.S.C §§ 12101-12117, 12201-12213.


      1. Definition - A physical or mental impairment that substantially limits one or more major life activities. Id.


      2. Three stages of disability-related inquiries - Title I of the ADA limits an employers ability to make disability-related inquires or require medical examinations at three stages:


        1. Pre-offer - At the first stage, prior to an offer of employment, the ADA prohibits all disability related inquires and medical examinations, even if they are related to the job.


        2. Post-offer - After an individual is given a conditional offer, an employer may make disability-related inquires and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.


        3. During employment - An employer may make disability-related inquires and require medical examinations only if they are job-related and consistent with business necessity.


      3. Essential functions - Disability-related inquires and medical examinations of employees must be "job related and consistent with business necessity." The general rule is that an employer may inquire as to an individual's abilities, but not his or her disabilities.


      4. Confidentiality - The ADA requires that employers treat any medical information obtained from a disability-related inquiry or medical examination (including medical information for voluntary health or well ness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medial record.


    2. The Age Discrimination in Employment Act (ADEA) - The ADEA prevents employers from giving preferential treatment to younger workers to the detriment of older workers. 29 U.S.C. §623.


      1. The ADEA only applies to workers 40 years of age and older, and to workplaces with 20 or more employees. 


      2. The ADEA protects individuals from discriminatory treatment, based on their age, in hiring, promotion, and firing decisions.


      3. BFOQ - Like Title VII, the ADEA allows the employer to make a hiring decision based on age if the employer can prove age is a BFOQ.


  1. MEDICAL, DRUG, AND ALCOHOL TESTS


    1. Timing - Medical examinations may not be required before an offer for employment, but they may be proper when there is a conditional offer of employment.


    2. Job-related and Consistent with Business Necessity - If an employer desires to test an employee during employment, the employer must show that the test is job-related and consistent with business necessity. A medical examination may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:


      1. An employee's ability to perform essential job functions will be impaired by a medical condition; or


      2. An employee will pose a direct threat due to a medical condition.


    3. Medical Examination - Under the ADA a "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health. Consider:


      1. whether the test is administered by a health care professional;


      2. whether the test is interpreted by a health care professional;


      3. whether the test is designed to reveal an impairment or physical or mental health;


      4. whether the test is invasive;


      5. whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;


      6. whether the test normally is given in a medical setting; and,


      7. whether medical equipment is used.


    4. Examples of Medical Tests - vision tests, blood pressure tests, screening of blood and urine for alcohol or disease, range-of-motion tests, pulmonary function tests, psychological tests to identify a mental disorder, x-rays, CAT scans, and MRIs.


    5. Not Medical Tests - tests to determine current illegal use of drugs, physical agility tests, physical fitness tests, psychological tests to measure personality traits, and polygraphs.


    6. Drug-Free Workplace Act of 1988. 41 U.S.C §701. This Act basically states that any employer who receives federal grants or contracts must be drug-free, or it risks losing federal funding. That Act applies to federal governmental entities and federal contractors, but not necessarily to private employers.


    7. Florida Drug-Free Workplace Act (Florida DFW), The Florida DFW applies generally to all state governmental entities. Florida Statutes §§ 440.101- .102. However, there are incentives if private employers choose to implement and maintain a Florida DFW program.


      1. All Other Things Being Equal - First, where two or more bids that are equal are received by the state or political subdivision for the procurement of goods or services, the State of Florida is to give preference to a business that has implemented a drug-free workplace program. Florida Statutes § 440.101;


      2. Give Me A Break - Second, the State of Florida gives a workers compensation premium discount to those employers who have implemented a drug-free workplace.


      3. Requirements - The requirements of the Florida drug-free workplace policy are similar to those of the federal government.
        1. Timing - Even though testing for drugs in Florida is voluntary, to reap the benefits of the program, the Florida act requires preemployment, for-cause ("reasonable suspicion"), post-accident, and rehabilitation drug testing. Florida Statutes § 440.102 (4).


        2. Random Testing - Random drug testing is permitted by private employers, but not required. Florida Statutes §440.102(4)(b).


        3. Reasonable Suspicion - Reasonable suspicion must be based on "observable phenomenon" like direct observation of drug or alcohol use, abnormal conduct, erratic behavior or significant deterioration in an employee's work performance.


        4. Post Offer - Even though preemployment drug testing is required under this program, it is best, for federal and state discrimination law considerations, to conduct the test after an offer for employment is made.


      4. Compliance - To comply with the program, employers must establish (1) a written policy governing when testing will take place and how it will be performed; (2) the types of drugs employees will be tested for; and (3) a written policy concerning what will happen to an applicant or employee who tests positive ro refuses to take a test. Florida Statutes §440.102(3). The program also requires that employees be notified of the employee assistance programs that are available, the fact that results will be confidential, and that an employee may explain a positive test result.


      5. Not a Medical Exam - In consideration of federal employment laws, it is important to note that drug testing does not does not constitute a medical exam for ADA purposes. 42 U.S.C. §12114(d). However, under the ADA, an applicant may not be excluded from employment based on a past history of drug or alcohol use.


  2. ABILITY AND SKILLS TESTS


    1. Definition - A professionally developed ability test as tests which "fairly measure the knowledge or skills required by a particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs." Griggs v. Duke Power Company, 401 U.S. 424, 434 n.9 (1971).


    2. No Adverse Impact - Employers may use professionally developed ability test pursuant to Title VII (42 U.S.C. §2000e-2(h)), but the tests must not have an adverse impact on a protected class, unless the selection procedures have been validated. 29 C.F.R. §1607.3.


    3. Selection Procedures - Employers may demonstrate the validity of a selection procedure in one of three ways. Id. Validity may be demonstrated by criterion related studies, content validity studies, or construct validity studies. 29 C.F.R. §1607.16.


      1. Content valid tests demonstrate that "the content of a selection procedure is representative of important aspects of performance on the job." Id.


      2. Construct valid tests demonstrate "that the selection procedure measure the degree to which candidates have identifiable characteristics which have been determined to be important for successful job performance." Id.


      3. Criterion-related valid tests demonstrate "that the selection procedure is predictive of or significantly correlated with important elements of work behavior." Id.


    4. Job-Related - The EEOC, the agency with the ability to enforce Title VII, has stated that only job-related tests are permissible under Title VII if there is a disproportionate impact on a protected class. If there is no disproportionate impact on a protected class then a test may be used whether it is job-related or not.


    5. No Pre-Offer Tests - The ADA prohibits employers from requiring pre-employment physical examination. At the pre-offer stage, however, employers may ask about an applicant's ability to perform specific, job-related functions. All employees for a specific job must be required to take the same physical exam, information obtained from the exam must be kept confidential, and the employer cannot use the information to discriminate against the applicant or employee just because of the disability.


  3. APTITUDE, PSYCHOLOGICAL, AND PERSONALITY TESTS


    1. Prevalence - In 2003, 75% of all employers were using psychological tests. Measuring the Mind, 109 Penn St. L. Rev. at 860-61.


    2. Personality Tests - Personality tests make up a large number of those psychological tests. Id. Employers administer personality tests to job applicants and current employees for training and advancement purposes. Id. at 858. Two types of personality tests are used by employers, objective and projective. Id. at 862.


      1. Purpose - Although fundamentally different, both types are "designed to measure an individual's emotional, motivational, interpersonal, and attitudinal characteristics, as opposed to abilities." Id.


      2. No Physical Intrusion - Personality tests do not involve physical, bodily intrusion. Id. At 868. Therefore, privacy concerns are not as much of a consideration as in drug testing. Id.


      3. The ADA - Courts are divided as to whether personality tests violate the ADA privacy provisions that prohibit pre-offer medical testing. (1) Id. at 870. As noted above, it is unlikely that employers would propagate an overtly discriminatory personality test which rise to the level of disparate treatment. Therefore, it is important for employers to ensure that personality tests do not unintentionally discriminate against a protected class.


      4. Selecting the Test - Employers should select personality tests that have been professionally developed and validated by a recognized testing organization, and that are appropriate for the available position. Measuring the Mind, 109 Penn St. L. Rev. at 882. Questions involving protected characteristics that lack a logical nexus to the job should be eliminated. Id.


      5. Not Alone - If an employer decides to use personality tests, it is important to use the test in conjunction with other selection methods, rather than citing the results as a dispositive factor in an employment decision. Id. at 883.


    3. Aptitude Tests - Aptitude tests should be carefully chosen and must serve a job-related function. Aptitude tests have a high chance of discriminating against minorities in violation of Title VII. FAQ:Job Applicant Testing, supra. For example, a test of English language skills might disqualify an unusual number of persons for whom English is a second language. Id. If the job does not require English then the test is illegal. Id.


    4. Psychological Tests - Psychological tests are considered a medical exam if they have the potential to elicit answers that suggest a mental disorder or impairment. Sourcebook, Ford and Harrison, 2004. Psychological exams are not considered medical exams is they are intended to gather information about personality traits. Therefore, if an employer decides to use a psychological test, the employer must be mindful of ADA restrictions. Id. They may also implicate privacy rights and discrimination issues. Id. It is suggested that if an employer decides to do any sort of psychological test then it should only be given after an offer has been extended. Id.


  4. POLYGRAPH TESTS


    1. EPPA Prohibition - The Federal Employee Polygraph Protection Act (EPPA) generally prohibits employers from requiring applicants to take lie detector tests or asking applicants about previous lie detector tests. 29 U.S.C. §2002.


    2. Before Employment Exemptions from EPPA - There is a narrow list of exemptions for jobs which an employer may require a lie detector test before employment. The exempt positions include


      1. businesses under contract with the federal government involving specified activities;


      2. businesses whose primary purpose is providing armored car personnel, personnel involved in the design of facilities which have significant impact on the health and safety of any state, or security personnel of such facilities; and


      3. companies which manufacture, distribute, or dispense controlled substances. 29 U.S.C. §2006.


    3. During Employment Testing - Businesses can request that current employees take a polygraph test only when specific conditions have been satisfied. If an employee refuses the request, the employer cannot discipline or discharge the employee based on the refusal to submit to testing.


      1. On-Going Investigation - A poly graph test of a current employee must be incident to an on-going, specific investigation. 29 U.S.C. §2007(a).


      2. Economic Loss - The investigation must involve circumstances of identifiable economic loss to an employer.


      3. Written Statement - Before testing, the employer must provide the employee with a written statement that includes the identification of the company, description of the loss or activity under investigation, specific amount of the loss, how the employee had access to the loss, and the type of reasonable suspicion there is to suspect the employee of being involved.


      4. Notice - The employee must be given 48 hours advance written notice of the date, time, and location of the test. 29 U.S.C. §2007((b)(2)(A).


      5. Advance Warning of the Questions - The employee must not be asked any questions that were not presented to the examinee in writing for review before the test.


      6. Restricted Questions - The examiner must not ask any questions relating to religious beliefs, racial beliefs, political beliefs or affiliations, or sexual behavior. 29 U.S.C. §2007(b)(1). It is important for an employer to conduct an additional interview of an employee prior to any adverse action following a polygraph test.


      7. Violations - For each violation of the law an employer could face a penalty of $10,000. 29 U.S.C. §2005.


      8. Record Keeping - Furthermore, employers need to keep records of all communications relating to the test for a minimum of three (3) years. 29 U.S.C. §2007(c)(2)(B).


  5. CREDIT AND BACKGROUND CHECKS


    1. FCRA - Employers may use consumer reports in hiring new employees and in evaluating employees for promotion or reassignment, so long as the employer complies with the Fair Credit Reporting Act (FCRA). 15 U.S.C. §1681.


    2. Consumer Report - A consumer report is one that is prepared by a consumer reporting agency. Consumer reports can include anything from credit payment records to driving records to criminal histories.


    3. No Consumer Agency = No FCRA - The FCRA applies when an employer requests a consumer report, not when an employer conducts an independent investigation regarding the employee, without the help of a consumer reporting agency.


    4. Investigative Consumer Reports - Investigative consumer reports may include interviews with friends, neighbors, and associates.


    5. Notice - Before an employer obtains a consumer report, the employer must notify the individual in writing that a report may be used. The writing must consist solely of the notice.


    6. Authorization - The applicant or employee must give written authorization before an employer may request a consumer report.


    7. Adverse Action Based on Report - If an employer bases an adverse action (termination, reassignment, or denial of employment) on a consumer report then the employer must follow two steps.


      1. First, before the adverse action, the employee must give a 'pre-adverse action disclosure' that includes a copy of the individual's consumer report and a copy of 'A summary of your rights under the Fair Credit Reporting Act,' a document prescribed by the FTC.


      2. Secondly, after the adverse action is taken, notice must be given to the individual in an 'adverse action notice' which includes the name of the consumer reporting agency, a statement that the consumer reporting agency had nothing to do with the decision, and notice of the individual's right to dispute the accuracy of the information.


    8. Case Precedent - Court cases under Title VII have held that requiring good credit as a condition of employment can have a discriminatory result, since disproportionately more non-whites than whites live below the poverty level. It is imperative the employers keep this in mind when deciding to conduct checks.


    9. Negligent Hiring and Retention - For some positions, it is imperative for employers to be aware of past criminal behavior to limit the employers potential liability for negligent hiring.


    10. Required Screening for Certain Occupations - Florida requires background screening or a background security check for a number of different positions. There are two separate levels of jobs that require different levels of screening for each.


      1. Level 1, the strictest, mandates screening of employees required to be licensed or registered pursuant to Florida Statutes chapter 400, and for employees and employers of developmental services institutions, intermediate care facilities for the developmentally disabled, and mental health treatment facilities. Florida Statutes §435.03.


      2. Level 2 requires all employees in positions designated by law as positions of trust or responsibility to undergo security background investigations as a condition of employment and continued employment. Florida Statutes §435.04.


    11. Criminal Background Checks - Employers should only seek out information about convictions, and not arrests.


    12. Good Practices - If an employer is going to do either criminal or credit background checks, it is important to keep a few things in mind.


      1. Match the check to the Position - The employer should determine which checks are necessary considering the responsibilities of the position, don't automatically use the same checks for every position.


      2. Apply Evenly - Perform the same checks on all individuals applying for the same position.


      3. Notice - Communicate with the employee or applicant, in writing, ahead of time, regarding the types of checks that will be conducted and make sure to obtain written consent.


      4. FCRA Checklist - Ensure that the procedures outlined in the FCRA are followed.


      5. Confidentiality - Employers must keep personnel files in the human resources department under lock and key.


  6. CONCLUSION - Testing is a useful tool for employers, and with a modicum of care, can be performed without creating liability.

    1. As discussed in Subsection 1 above.