A question we often hear about assessments has to do with the legal issues which surround their use.  A critical point that sometimes gets ignored in these discussions is the fact the same legal principles pertain when any method is used to select employees, whether testing is part of it or not. A good example is a recent EEOC suit that Walmart settled for nearly $12 million due to gender discrimination in hiring distribution center personnel for a facility in Kentucky. Essentially, based upon the assumption that the positions were not suitable for women, Walmart only selected men for these jobs.

In contrast to most testing cases, this did not involve adverse impact which occurs when the differences in selection ratios between groups are due to inadvertent factors. (For example, if Walmart had used a physical ability test with a cut score that was higher than necessary given the demands of the job, this would have been a case of adverse impact because it would have eliminated a large proportion of female applicants.) Rather, this was a case of gender discrimination where women simply weren’t considered. However, the critical point is that the same EEOC stipulations apply to how employees are selected and hired--whether tests are used are not.

Reid Klion