EEOC Issues New Guidance on Employment Testing

The Equal Employment Opportunity Commission has issued new "enforcement guidance" on "Employment Tests and Selection Procedures," link here.

The Guidance does not contain a lot of analysis. However, it is interesting for a couple of reasons:

- the EEOC considers background checks - such as criminal and credit checks - to be "tests," analyzed under disparate impact and treatment theories. This could have wide-ranging implications. It may be that applicants challenge such tests under an "adverse impact" theory. If adverse impact is shown, the employer will have to prove the tests are "job-related and consistent with business necessity." That means that background/credit/criminal checks for all employees could be challenged.

- the EEOC also identifies "performance appraisals" under the same rubric.

Otherwise, the Guidance briefly discusses anti-discrimination laws and how employment selection procedures may violate them. It also summarizes some EEOC litigation.

H/T to Storm.