Howdy! Last week we were looking at some tried-and-true hiring practices and 
how they might put an employer at the receiving end of an age discrimination claim. Specifically, we looked at questions asked during a job interview that, while seemingly innocent are really a trap for the unwary. This week we are looking at job advertisements and pre-employment tests , which are fraught with similar pitfalls. Let’s have a look at these after the jump…
We are back with Brilliant Business Inc, Tricia the Trainer, and you, Brilliant’s new Regional Sales Manager. You were most generous last week in sharing what you learned in your training session on age discrimination issues. Here is what you learned about job advertisements and pre-employment testing:
2. Criteria in a Job Advertisement or Posting that Could Exclude Qualified Candidates Over 40:
The most important point you learned was that essentially, everything Tricia said about interview questions applies to job listings too, but let’s go over some of Tricia’s examples. One example: advertisements looking for a “recent graduate” or that specify preferred graduation years. What’s wrong with that? Such criteria generally discourage a disproportionate amount of candidates over 40. Facebook in 2013 settled a complaint filed with California’s Fair Employment and Housing Department over a job posting that stated “Class of 2007 or 2008 preferred”. Similarly, stating that the position requires “0-3 years’ experience” will most likely discourage over-40-year-old candidates.
While Tricia does not seem to have touched on this, there’s also an expression that has been gaining popularity that I strongly caution you to avoid using: “digital native”. For some people a digital native means someone very adept at using the computer, the internet, social media or all of those. For many however, digital native means someone born after 1990. Better to err on the side of caution. If you want a skilled I.T. professional or someone comfortable in the digital environment, say so and leave it at that.
What about educational credentials? Tricia assured you that you can specify them in a posting or advertisement but recommended that you leave the graduation year out. You can later ask the candidate to provide proof that s/he in fact has those credentials upon extending a conditional job offer. You see? You get the information you need, without getting the information that could cause you trouble if you get it too early in the hiring process.
3. Improper Use of Pre-Employment Tests:
While you have never used a pre-employment test, some of your friends have, so you were interested in what Tricia said here as well. You assume there is not much to learn here—because an employer have a right to ensure that a candidate is a good fit for the position in question – and the company, right? Yes—but…if a pre-employment test excludes a disproportionate number of otherwise qualified candidates over 40 (or in some states any age group) the test then has a discriminatory impact, which may amount to a violation of the ADEA. The Equal Employment Opportunity Commission – and the courts—often refer to this phenomenon as disparate impact. A practice that has a disproportionate –and adverse–impact on a protected class is a discriminatory practice under anti-discrimination laws. I’ll bet Tricia really got your attention at this point!
How might this work at Brilliant? Suppose Brilliant requires every candidate to take a vision test without wearing any corrective lenses. A candidate’s vision must be 20/50 or better. Putting aside how silly this example seems, why can’t you require such a test? You require everyone to take this test and satisfy this test, so you’re not discriminating, right? Think again! Under the disparate impact theory you most likely are discriminating. Why? Chances are a good number of otherwise-qualified over-40 candidates will be excluded based on that test – which probably has nothing to do with job functions. Does one really need to have 20/50 vision or better to safely and competently perform sales job functions? Candidates over 40 are more likely to need corrective lenses and less likely to meet that minimum vision requirement without them. Your requirement has a discriminatory impact against candidates and workers over 40 and that would violate the ADEA.
But wait, Tricia told you, there’s more…
Many employers err by applying a testing requirement to some candidates for a particular position but not others. That is known as disparate treatment, “classic” discrimination… If, for example, you only require over-40 candidates (or candidates that you think are past a certain age) to take such a vision or cognitive test and satisfy such vision requirements, that is disparate treatment discrimination, which is absolutely an ADEA violation.
While Tricia did not mention it in your training I want to mention another point here: no candidate should be given a medical test prior to receiving a conditional job offer. (Pre-offer medical tests also violate the Americans with Disabilities Act.) Even after the job offer the medical test must be related to job performance. If the job in question does not require one to be physically fit or strong, however, you should consider not administering the medical test.
Bottom Line: Make sure that tests are job-related, and that you have the same requirements of every candidate for the position in question. If Brilliant wants to ensure that a candidate for a sales position has certain skills, it can implement a test to all sales candidates as long as the test focuses on those skills.
Let’s stop here for now and return next week — same time, same station–and wrap up this topic.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here..
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