By: Gabrielle D. Campbell, Esq.
Published on: Fri 5th Jan, 2024 By: Campbell Durrant, P.C.
The EEOC recognizes that the use of employment tests can be an effective means for determining the qualification of job applicants or employees for a particular job. In fact, many employers routinely use employment tests to screen applicants for hire and employees for promotion. So, what’s the problem? Well, the EEOC cautions that the use of employment tests can violate federal anti-discrimination laws if not properly assessed and validated.
In a recent lawsuit initiated by the EEOC against Walmart, the EEOC challenged the use of an employment test because of its disparate impact on disabled employees. The test was developed by a third-party entity, and it included a 40-question self-administered assessment called the “Pathways Graduation Assessment” (PGA). Walmart required new hires to correctly answer 70% of the PGA to continue in the training program, and those who failed after three attempts were terminated. The EEOC’s complaint alleged that Walmart terminated employees with disabilities across the United States, including two (2) in Arkansas, who failed the test after three attempts even though they satisfactorily performed their jobs. One of the plaintiffs, Glenda Scott, is deaf and communicates using sign language. After Scott failed the PGA for a third time, she was discharged. The other plaintiff, Jaclyn Walker, had both an intellectual disability and a speech/language disability. When Walker failed the test for a third time, she was also discharged. The EEOC filed suit, alleging that Walmart’s termination of the disabled employees violated the Americans with Disabilities Act (ADA). Specifically, the EEOC claimed that the test was “not related to the employees’ job duties or job performance”. U.S. Equal Employment Opportunity Commission. “EEOC Sues Walmart for Disability Discrimination.” (Sep. 13, 2023). https://www.eeoc.gov/newsroom/eeoc-sues-walmart-disability-discrimination-6.
Walmart’s actions serve as a cautionary tale for all employers who use, or are thinking about using, employment tests. Walmart failed to demonstrate that the test was job-related and consistent with business necessity. Further, it failed to provide reasonable accommodations to its disabled employees taking the test. The EEOC urges and the ADA requires that employers provide reasonable accommodations for the administration of employment tests where they are aware of the physical or mental limitations of the employees, unless doing so would cause undue hardship. Even if employers can demonstrate that the test is job related and consistent with business necessity, they should consider whether there is a less discriminatory alternative that would be equally effective but would not disproportionally exclude the protected group.
In its Complaint against Walmart, the EEOC emphasized that the PGA was an unvalidated third party test. Walmart could not argue that the unvalidated test was predictive of job performance and therefore consistent with its business necessity, despite the disparate impact on disabled employees. Therefore, it is likely that Walmart will either settle or lose this lawsuit because it failed to reasonably accommodate employees with disabilities taking the employment test, as required under the ADA.
This lawsuit serves as a reminder that employers should ensure employment tests comply with the ADA and EEOC guidelines prior to implementation. As such, when determining what kind of employment test to use, employers should examine how/why the test is relevant to the essential functions of the position. Additionally, employers should ensure that they offer reasonable accommodations for the administration of employment tests where they are aware of an employee’s physical and mental limitations. If employers fail to do so, like Walmart, they run the risk of a lawsuit.
• Ensure that your employment tests comply with the EEOC’s guidelines on employment tests and selection procedures.
• Always ensure that your employment tests are “job related and consistent with business necessity”.
• Notify applicants that they can request reasonable accommodations to take employment tests, and employers should reasonably accommodate employees with known physical or mental limitations.
The use of employment tests is an effective way of developing your work force. However, in a recent lawsuit filed against Walmart, the EEOC cautioned that if not properly validated and assessed, employment tests can violate the federal anti-discrimination laws. As such, employers should ensure that employment tests comply with all Equal Employment Opportunity laws and regulations, including ADA guidelines; are validated and are “job related and consistent with business necessity”.