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A growing number of employers are using employment exams � including aptitude tests � to weed out potentially bad hires, a practice that has triggered an increase in complaints and legal actions. The recent boom in online job applications yielding huge numbers of applicants has contributed heavily to the practice, lawyers note, along with post-Sept. 11 fears about workplace security and the high costs of hiring mistakes. Meanwhile, the popularity of employment tests has caught the attention of the Equal Employment Opportunity Commission (EEOC), which has seen a dramatic increase in the number of discrimination complaints it has received arising from job screening tests: from 26 in 2003, to 141 in 2006. “This is an enforcement priority for the EEOC right now,” said Michael Rosen, a management-side attorney at Boston’s Foley Hoag. “That in and of itself is something that employers should be paying attention to.” Two big settlements Adding to employers’ fears are recent hefty settlements involving testing procedures, including a class action against Ford Motor Co. in which Ford paid $1.6 million in 2007 to settle claims that black applicants were unfairly rejected for an apprenticeship program after taking a written test that measured verbal, numerical and spatial reasoning. Plaintiffs alleged that the test had a disparate impact on black applicants, and accused Ford of not adopting an alternative test that was less discriminatory. EEOC v. Ford Motor Co. and United Automobile Workers of America, No. 1:07-CV-00703 (S.D. Ohio). Also last year, shipping giant FedEx Corp. settled a discrimination lawsuit for $54.9 million to resolve, among other things, claims that its “Basic Skills Test,” which was a prerequisite to earning a promotion, had an adverse impact on minorities. Satchell v. FedEx Express, No. 3-03659 (N.D. Calif.). EEOC officials stressed that they’re not trying to scare employers away from using employment tests � just urging them to be careful or face possible litigation. Reed Russell, legal counsel to the EEOC, said that employment screening tests run the risk of violating federal discrimination laws, particularly if they have a disparate impact on a protected group, such as minorities or the elderly. Certain personality or integrity tests could also violate the Americans With Disabilities Act by asking questions that could reveal a mental illness or disability. “We recognize that tests can be a very effective management tool. We don’t want to discourage employees from using well-developed and -designed tests that help their businesses,” Russell said. “What we are saying is, ‘Please be aware of the legal requirements and please develop these tests not haphazardly.’ “ Keith Pyburn, an attorney in Atlanta-based Fisher & Phillips’ New Orleans office, has had dozens of clients who use employment tests. He believes that pre-employment screening tests “are getting a bad name.” “[T]here are some charlatans out there selling crap. But tests that are well developed and carefully used get a bad name,” said Pyburn. He believes that properly crafted mental and mechanical ability tests can predict future job performance. Vanessa Griffith, a management-side attorney in the Dallas office of Houston-based Vinson & Elkins, said that there is a “growing dissatisfaction with the old interview/résumé evaluation. Employers cannot get information about how employees have done on prior jobs. “I think employers are constantly struggling with ‘How do we improve the selection process?’ They’re not trying to discriminate [using tests] They’re struggling with ‘How do we do it?’ “ Employee-rights attorneys, meanwhile, welcome tighter federal scrutiny of employment testing procedures. “I’m always concerned about testing being a pretext to enable employers to discriminate. And I think that unless they are strictly related to specific job functions, they should be discouraged,” said employee-rights attorney John West of Allred, Maroko & Goldberg in Los Angeles. West is concerned that employers are using tests “to indiscreetly find out if they should anticipate disability claims.” He also views exams such as math and literacy tests as “a guarantee for discrimination” that can have a disproportionate impact on minorities and possibly on people with learning disabilities.

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