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Biased Testing Requirements as Evidence of Discrimination


Proficiency exams, math tests and other forms of assessment are not uncommon in the employment context. Tests are often used in making hiring decisions. While these tests are not, per se, unlawful, they must be applied uniformly. If the application of employment tests results in discrimination, or a disparate impact on a particular group of applicants, then they may very well be unlawful.

Recent discrimination claims against Target

The Equal Employment Opportunity Commission (EEOC) filed a complaint against Target, the retail chain, alleging both gender and race discrimination, involving about 3,000 employees. The complaint also alleged a violation of the Americans with Disabilities Act. The violations relate to employment testing and assessments that were allegedly biased. The case settled for $2.8 million.

Discriminatory testing by Target

For at least the past decade, according to the EEOC, Target had been using hiring assessments for upper-level positions that were not sufficiently job-related, which violates Title VII of the Civil Rights Act of 1964. Despite the fact that, on their face, the tests were neutral, in practice the tests prevented blacks, Asians, and women from receiving these upper-level jobs. In addition to these biased assessments, Target required a pre-employment psychological exam in violation of the Americans with Disabilities Act, which prohibits employers from requiring applicants to submit to medical exams before receiving job offers.

Target's response to the EEOC's claims

Even with the large settlement, Target is not admitting any wrongdoing. Nevertheless, in response to the charges, Target has agreed to monitor the hiring of its employees more carefully, and to use expert consultants in training its employees on the proper administration of employment assessments.

The need to eliminate systemic bias in employment

The EEOC has begun taking steps to eliminate systemic bias from the recruitment, screening, and hiring of employees. However, despite some progress, employment discrimination remains widespread in the United States, still taking the form of biased screening assessments of potential employees. Whether the bias is intentional or occurs unknowingly, it is still a huge problem in the employment context.

A warning to employers

The Target case should serve as a warning to employers who routinely use tests and other assessments to screen job applicants. In order to avoid discriminatory effects, it is critical that these tests do not disproportionately affect protected classes. In order to determine whether a particular test has a biased effect on applicants, employment statistics need to be gathered and reviewed.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel | King , either online or by calling us at (205) 265-1880.

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