On July 19, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a press release announcing it entered a consent decree with Leprino Foods, Inc. (“Leprino”) relating to use of a pre-employment test that it determined had an adverse impact on minority job-applicants at the company’s Lemoore West facility. The positions for which Leprino was using the test were entry-level, on-call labor positions called WorkKeys. The OFCCP found that the test, which examined applicants’ abilities in mathematics and in locating information, was not job-related because these skills were not critical to the applicants’ job duties, which included inspecting products, monitoring equipment and maintaining sanitation at the facility. In the press release, Director Patricia Shiu warned that contractors “cannot create artificial barriers to employment that unfairly block any individual from competing for good jobs.”
Leprino agreed in the consent decree to pay $550,000 in back wages, interest and benefits to 253 minority candidates who failed the pre-employment test. In addition, Leprino agreed to stop using the test for these positions, hire thirteen of the affected class members, and undertake extensive self-monitoring.
It is important for contractors to remember that, any time they use a pre-employment test, there is a risk of Title VII and ADA claims or OFCCP or EEOC proceedings claiming that the test adversely impacts protected groups. Clearly, even spurious claims will be costly to defend, and carry with them the potential of unwanted publicity, penalties, injunctive relief and damage to a contractor’s reputation. However, there are prophylactic steps that a contractor can take to minimize legal exposure, including:
- Carefully identifying the skills and abilities that are required for the position by undertaking an internal and external job study of the position;
- Ensuring that these mandatory skills are consistent with the skills held by the contractor’s current workforce and identifying those skills in the job description and on all postings for the position;
- Closely scrutinizing the testing offered by vendors to make certain that they test the skills identified by the contractor in its job study and that their validation studies are consistent with the Uniform Guidelines on Employee Selection Procedures (“UGESP”), are current, and have not been rejected by EEOC, OFCCP or courts;
- Consider using proposed tests on current employees to determine whether the results are consistent with observed job skills and performance;
- Once a test is selected, training managers and staff regarding the proper and consistent use and application of the test, including handling requests by job applicants for reasonable accommodation;
- Once the pre-employment test is implemented, keeping careful records and data reflecting the impact of these tests on the hiring of protected groups, and submitting such data to regular, periodic review;
- Monitoring the jobs to identify any changes in the job requirements for the position and in the methods, equipment and tools used in it that would impact the contractor’s skills testing and the validation of it; and
- Having a procedure in place to evaluate the results and conclusions drawn from the reviewed data and to coordinate with hiring managers, Human Resources personnel, and counsel to modify tests, if necessary, to achieve a more narrowly-tailored selection procedure with less impact on protected groups.
This list is not exhaustive but forms a framework for proper procedure to be followed in the selection, implementation, and evaluation of pre-employment tests in order to minimize legal risk to contractors.