For years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that certain employment tests and screening procedures can serve to discriminate against racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) when not “properly validated” as “job-related” and “consistent with business necessity” under the Uniform Guidelines on Employment Selection Procedures (UGESP).
Earlier this week, the EEOC filed suit against an assisted living facility for its use of an “unlawful employment exam” that allegedly discriminated against African employees on the basis of their national origin in violation of Title VII. EEOC v. Columbine Management Services, Inc., No. 1:15-cv-01597-MSK-CBS (D. Colo. filed July 27, 2015).
According to the Complaint, in April 2009, Defendant Columbine Management Services began requiring all Personal Care Providers (PCPs) at Defendant New Mercer Commons to complete a written exam as part of a PCP training course. The EEOC maintains that the Defendants “did not complete any formal job analysis of the essential skills or job duties necessary to perform the PCP position, before or as part of developing the PCP exam.”
The EEOC claims that “a disproportionate percent of the African exam takers failed the exam” (disparate impact) and that the Defendants “exploited the PCP exam as pretext” for discharging African employees (disparate treatment).
To establish pretext, the EEOC asserted that the exam contained questions “known to confuse ESL (English as second language) test-takers” and “variables unrelated to the skills the exam was intended to measure.” The agency also alleged that Africans were “given little if any partial credit for questions answered at least in part correctly,” while non-Africans received “partial credit for partially correct answers.” The EEOC also pointed to other examples of “comments and actions” allegedly demonstrating a “bias against PCPs of African national origin.”
This lawsuit is just the latest example of the EEOC’s continued efforts to police employer testing and selection procedures. We will continue to monitor this case and other related developments. Stay tuned…
Katharine Parker and Daniel Saperstein are Co-Chairs of Proskauer’s Hiring & Background Checks Group.