May 30, 2007

EEOC HOLDS IMPORTANT PUBLIC MEETING ON TESTING AND SELECTION

by Patricia A. Schaeffer, Vice President-Regulatory Affairs

The EEOC held a public meeting on May 16 to gather information and address emerging trends in workplace testing and selection procedures. Fifteen invited expert panelists spoke at the meeting, including EEOC attorneys and charging parties, advocates on behalf of employers and employees, and two organizational psychologists. Topics of discussion included written tests, criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices.

Invited speakers at the EEOC’s meeting included:

  • Richard Tonowski, Chief Psychologist, Research & Analytic Services, EEOC Office of General Counsel
  • Carol Miaskoff, Assistant Legal Counsel, Coordination Division, EEOC Office of Legal Counsel
  • Jean Kamp, Associate Regional Attorney, EEOC Chicago District Office (with Charging Party, Paula Liles)
  • Jeffrey Stern, Senior Trial Attorney, EEOC Cleveland Field Office (with Charging party, James Robinson, Sr.)
  • Ken Willner, Partner, Paul Hastings, Washington, D.C.
  • Cyrus Mehri, Partner, Mehri & Skalet, Washington, D.C.
  • Rae T. Vann, General Counsel, Equal Employment Advisory Council, Washington, D.C.
  • Adam T. Klein, Partner, Outten & Golden, New York, New York
  • Shereen Arent, Managing Director, Legal Advocacy, American Diabetes Association, Washington, D.C.
  • Lawrence Ashe, Partner, Ashe, Rafuse & Hill, Atlanta Georgia
  • Fred Alvarez, Parner, Wilson, Sonsini, Goodrich and Rosati, Palo Alto, California
  • James L. Outtz, Ph.D., Outtz and Associates, Washington, D.C.
  • Kathleen K. Lundquist, Ph.D., Applied Psychological Techniques, Inc., Darien, Connecticut

Not surprising, the speakers were in agreement in some areas, but not in others. Areas of agreement included:

  • Testing can be beneficial to employers and job applicants as part of the selection process;
  • Employers’ testing procedures can go awry for a variety of reasons to the detriment of the company and job applicants;
  • EEOC should develop enforcement guidance to clarify problematical testing issues;
  • EEOC needs to develop expert in-house resources to investigate and support litigation.

The areas of disagreement centered primarily on what are the problems in the testing process, and what EEOC should do to address them. For example, some management attorneys, but not plaintiffs’ counsel, generally support updating the Uniform Guidelines on Employee Selection Procedures (UGESP) to simplify validation requirements. Others did not support updating the UGESP, and they raised concerns about the conclusions drawn from recent testing research.

The statements of individual speakers are available on the EEOC’s website.

Based on the Commissioners’ follow-up questions and comments, there are indications of potential agency action in the testing arena. How far the Commission will act is another question.
DCI will continue to monitor and report on developments in the testing area.

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