The Right Assessment is a Good Predictor if Candidate is Able to Learn and Master The Job Classification – Job Relevance is Critical to Legal Compliance and Success

by Jim Poole, President of Lifetime Learning, LLC

There are many types of job assessment instruments. Some are industry-specific, some job-specific and some are skill, competency or behavior preference specific. Job-specific tests are limited to assessing for core skills and abilities required to learn and master the tasks required of a job classification.

There are numerous other commercial tests that employers use. For example, cognitive tests assess reasoning, knowledge, memory and perceptual speed, while physical ability tests measure the ability to perform physical activities to a required level. Medical and mental tests examine health and wellness, and DISC assessments identify behavioral preferences of an individual. Many more controversial tests have come into use since 9-11 under the justification or a “safe work place” such as credit checks, English language tests and criminal background tests.

The use of any test can violate federal anti-discrimination laws as enforced by the Equal Employment Opportunity Commission if the employer intentionally uses a testing instrument that discriminates based on race, color, sex, national origin, religion, disability or age (40 years old or older). They can also violate these laws if the test’s use has a “disparate” impact on a protected class – unless the employer can justify the use within the EEOC Uniform Guidelines on Employee Selection and in compliance with statutory and case laws.

The Civil Rights Act of 1964 Title VII, The Americans With Disabilities Act of 1990 and The Age Discrimination in Employment Act of 1967 laid much of the legal foundation for these laws. Years of case law further defined the application of these laws for employers. If one test used by an employer is challenged and loses, all other testing activities of that employer are considered suspect.

Employers sometimes do not realize they may be currently using “tests” that, while not labeled a test, fall under federal anti-discrimination laws. Many times these tests were created internally by non-professionals, and without any thought given to the need for compliance. Or these tests may be selected solely based on claims of a “national industry group’s” acceptance or that a prestigious institution developed them. It could be these tests are not being used for the audience for which it was designed.

Once an employee is hired, tests that determine an increase in wages, promotion, demotion, lateral transfers or access to programs such as apprenticeships or management training fall under the legal definition of a test. Any instrument that opens up opportunities or closes the door to advancement can be deemed a test and may pose a legal liability that a knowledgeable worker, negatively impacted by its application, may act upon.

In addition to being non-discriminatory and not causing disparate treatment of protected classes, tests in all cases have to show that they are testing for requirements that are “job related and consistent with business necessity.” This means that the requirement being tested is a “bonafide occupational qualification”(i.e. that evidence exists that the requirement being tested exists to a level of being significant to the competent performance of a task or business activity). If not, the employer might encounter a challenge that can, also, be very costly financially in penalties and imposed remedies.

“Content validation” forms one of the strongest types of evidence an employer can use to justify the selection of a test instrument and criteria. Other validity studies can be conducted while the test is in use to further ensure EEOC guidelines are met, but the courts have consistently zeroed in on whether content validity exists because it gets to what should be the primary purpose of a test and is the most neglected of the validations, requiring a detailed job and task analysis to show the connection of a skill, ability, knowledge or behavior to the work required of a job classification. Since the sample size of those taking an employer’s test is small, content validation may be the only form of validation that is credible.

Lifetime Learning has partnered on several occasions with Proactive Technologies, Inc. on projects for employers. Our joint approach provides a solution for employers who want not only a strong, legally defensible assessment process to find the candidates with the right mix of core skills and who can learn the required tasks of the job, but also want the structured on-the-job training that makes it certain new-hires transition to learning and mastering the tasks of the job. The job/task analysis that Proactive Technologies performs on every job classification that the employer targets – a task-by-task breakdown into procedural steps and perquisite core requirements to master the task – yields a comprehensive report called the Job Profile Analysis that not only identifies the prerequisite skills, abilities, competencies and traits that should be assessed, the report also shows to which tasks each criterion is job relevant. The report determines the concentration of core requirements and the overall importance to the job classification – whether the item should be tested, tested and periodically retested, not tested, or tested and remediated if deficiencies are detected.

When Proactive Technologies biennially re-validates its job data, this report can be used again to re-validate the assessments. This sound process and documentation meets the requirements for the EEOC Uniform Guidelines on Employee Selection.

The Proactive Technologies’ PROTECH© software generates a number of post-hire assessments, such as a job/employee-specific Performance Appraisal and Task Mastery Inventory Checksheet, based on the same job data, that measure how effective the drive of new-hire and incumbent workers toward “full job mastery” is operating. Care is taken to maintain legal defensibility, which explains why, after 30 years, no challenges to Proactive Technologies’ developed training and task mastery assessment instruments, and their application, have occurred.

It pays to approach testing in a careful, methodological way in more ways that the avoidance of legal challenges. A sound, job-relevant pre-hire assessment can lower hiring turnover, increase retention of qualified workers and speed up the task training process. Learn more about Lifetime Learning and Proactive Technologies products and services. Contact us for an onsite or teleconference briefing.