No one likes tests.  The mere mention of the word still gives grown adults, whose school days are long behind them, hives.  Not only are tests cringe-worthy, pre-employment screening tests may also expose employers to liability in discrimination cases.


On September 1, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs ("OFCCP") filed an administrative complaint against mozzarella producer Leprino Foods on account of the skills tests the company requires applicants to take.  The WorkKeys examination (as Leprino calls it) allegedly "measured applied math, workplace observation and information location skills related to on call-laborers." 


The OFCCP is not buying it.  In a press release, the OFCCP alleges that the test has no relation to the job to be performed.  In addition, it alleges that the test adversely affects minority.  After a 22-month study, they alleged only 49% of minorities passed the test, while 72% of non-minority applicants passed the tests.  The penalty that could be imposed if the OFCCP is right is that Leprino Foods could be stripped of all of its federal contracts and debarred.


Your company still needs to worry about pre-employment tests even if you are not a federal contractor, however.


The 2009 Supreme Court decision in Ricci v. DeStefano has brought an increased scrutiny to pre-employment tests.  In that case, white and certain Hispanic fire fighters in New Haven, Connecticut sought to force the City to certify the pre-promotion test results that the city had thrown out after deciding that the test negatively impacted other minorities.  The Supreme Court agreed and ordered the city to certify the test results.


In a classic example of damned if you do and damned if you don’t, the Second Circuit of Appeals reinstated a black fire fighters lawsuit alleging that the exact same test results that the Supreme Court ordered to be certified in Ricci, could be the basis for his claim that the test negatively impacted black firefighters.


Some employers, like public employers that require merit system examinations or something comparable, can not simply eliminate pre-employment and pre-promotion testing.  Private employers, on the other hand, are not forced by any law or agency to use such tests.


In light of the recent scrutiny, if employers choose to use such tests when making hiring or other employment decisions, you should ask two basic questions:  (1) is the test directly related to the essential job functions that the employee or applicant will perform and (2) are the test results an accurate predictor of future performance?  If you can not answer "yes’ to both questions, then employers should seriously reconsider even using the test.