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Can My Employer Use “Objective” Testing To Screen Out Black Applicants? Best Lawyer Answer!

On Behalf of | Mar 10, 2015 | Employment Discrimination, National Origin Discrimination, Race Discrimination |

Best Ohio Racial Discrimination Attorney Reply: Can a prospective employer refuse to hire me because I failed a pre-employment test? Can I sue for racism at work? Under Ohio law, can an employer refuse to promote me based on a racially biased test? Can employers make pre-employment testing mandatory?

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Fifty years ago, a job applicant would only be required to fill out an application that reflects their experience and ability to do the job. They would be able to walk into an employer’s place of business, fill out a form and sit through an interview where they fielded polite questions about their previous job experience and why they were the best candidate for the position. With recent developments in technology, employers are now asking for more than an application and a friendly interview chat. Some employers now have the capability of using sophisticated tests to find out everything there is to know about a prospective employee’s IQ, performance ability, honesty, and even whether or not they have an outgoing personality. The ability for employers to use a single test to determine whether or not an applicant will be hired begs the question of what happens when an applicant is qualified for the position, but can’t get past the initial pre-employment testing.

Under Ohio and federal law, an employer may conduct pre-employment testing so long as there is a business necessity to support the testing procedure. For example, an employer with a job opening that requires a high level of skill or cognitive ability can certainly request an employee to take a professional ability test that assesses how well the employee can finish tasks required for the position. Employers can justifiably deny an applicant the position if based upon the results of the test, they would not be able to complete any of the tasks required by the job.

My manager is a racist pig. Who are the best lawyers to sue your employer? Get a free initial consultation by calling attorney Brian Spitz and the employment law lawyers at Spitz, The Employee’s Law Firm and learn about all your race discrimination and wrongful termination rights.

With this in mind, there is one big exception to pre-employment testing, and that exception is contained in Section 703(h) of the Civil Rights Act of 1964. As you may already know from our previous posts (here and here), Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. Section 703(h) allows “for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex, or national origin.” In the 1971 case of Griggs v. Duke Power, the United States Supreme Court first address a claim of disparate impact and held, “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.” In other words, a professional test is permissible as long as it does not have a disparate impact on candidates who are protected under the Act.

Let’s take an example to break down how pre-employment testing should not work. Sally Brown is an African-American applicant who, among nine other African-American candidates applies for a position as a receptionist at Title Seven Corporation. Title Seven Corporation requires all job applicants to take a test in advanced reading comprehension regardless of which job the candidate applies for with the corporation. Sally had worked for years as a receptionist and when she applied, she was able to do all of the duties listed on the job description. Brown takes the exam with other African-American candidates and every single African-American candidate, despite being qualified for the position, failed the exam. The only candidate who was able to pass the exam was a Caucasian candidate who did not have nearly as much experience as a receptionist as Sally. Although Sally’s situation is an extreme example, it helps illustrate how professional tests should not be used to deprive qualified candidates who because of their race may not be able to pass the exam. Exams that do not have any relationship to the job or rule out individuals of a race altogether violate both state and federal law.

The Supreme Court more recently addressed this issue in Ricci v. DeStefano, and held:

The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially 2673*2673 neutral practices that, in fact, are “discriminatory in operation.” Id., at 431, 91 S.Ct. 849. The Griggs Court stated that the “touchstone” for disparate-impact liability is the lack of “business necessity”: … Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Under those precedents, if an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. (allowing complaining party to show “that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest”).

Twenty years after Griggs, the Civil Rights Act of 1991, 105 Stat. 1071, was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§ 2000e-2(k)(1)(A)(ii) and (C).

In Ricci, the problem before the Supreme Court was that the pre-screening testing was questioned by the employer as having a racially disparate impact and discarded. Specifically, the fire department of New Haven, Connecticut gave and relied on objective examinations to identify the best qualified candidates for promotions. In 2003, 118 New Haven firefighters sat for the examinations in order to seek for promotions to lieutenant or captain.

When the test results came back, they revealed that White employees had outperformed minority employees, particularly in regard to race. On the captain exam, the pass rate for white employees was 64 percent in comparison to 37.5 percent passage rate for both Black and Hispanic employees. Likewise, the pass rate on the lieutenant exam was 58.1 percent for White employees; 31.6 percent for African American employees; and 20 percent for Hispanic candidates. The passage rate for minorities on these tests were about half the pass rates for Caucasian employees and fell well below the 80-percent standard set by the Equal Employment Opportunity Commission (“EEOC”) to implement the disparate-impact provision of Title VII.

Some African American employees threatened to sue for racial discrimination if the tests were used to determine promotions. At the same time, other White and Hispanic employees argued that the test was racially neutral and thus, was fair basis for determining the promotion. These White and Hispanic employees threatened a discrimination lawsuit if New Haven considered their race as a basis to discard the test results. New Haven chose to ignore the test results and the White and Hispanic employees sued for race discrimination.

This law suit asserted that New Haven discriminated against the plaintiffs based on their race by discarding the test results. New Haven defended its choice by arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for the New Haven, and the Court of Appeals affirmed. The United States Supreme Court went the other way:

We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. …

Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate-impact provisions.” Brief for Respondents 12.

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F.Supp.2d, at 152; see also ibid. (respondents’ “own arguments … show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See § 2000e-2(a)(1)…

Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.

If an employer cannot rescore a test based on the candidates’ race, § 2000e-2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See § 2000e-2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT & T Corp. v. Hulteen, 556 U.S. ___, ___, 129 S.Ct. 1962, 1970, ___ L.Ed.2d ___ (2009).

For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. …

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, § 2000e-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.

Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end. We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

So where does this leave us? It is tricky. Very tricky. So what should applicants for jobs or employees that are applying for promotions do if they feel that testing results or that an employer ignoring testing results has screwed them out of a job or a promotion do? Get experienced employment discrimination attorneys involved as quickly as possible to evaluate your particular set of facts.

If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims.


The materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “What should I do …”, “I’m being discriminated against …”, “my boss is discriminating against me because …” or “How do I …”, your best option is to contact an Ohio attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz, or any individual attorney.

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