Legality of Testing
Despite the many benefits which assessments may provide an employer, the use of assessments raises many significant issues that an employer should be cognizant of when deciding to utilize assessments with job applicants.
Constitutional Claims
It is well settled that the United States Constitution has no applicability to a private employer. See, e.g., Myron v. Consolidated Rail Corp., 752 F.2d 50, 54 (2d Cir. 1985). 2 However, unlike the federal constitution, state constitutions are a possible avenue available to job applicants of private employers challenging the legality of personality and aptitude testing on right to privacy grounds.
While the New York State Constitution has no provision, at least 10 states have right to privacy protections in their state constitutions. Three Courts in some of these 10 states have provided broader privacy protections than U. S. Supreme Court decisions, including applicability against private employers. California is the most prominent example. See e.g., Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal.Rptr. 608,612 (Ct. App. 1980) (no state action necessary to bring cause of action for violation of right to privacy).
In a landmark ruling on the legality of psychological tests (for clinical diagnosis of abnormal behavior problems, i.e., the MMPI), the California Court of Appeals held that certain portions of a personality test administered to job applicants for security guard positions violated the state constitutional right to privacy and state anti-discrimination laws. Soroka v. Dayton Hudson, 18 Cal.App.4th 1200, 1 Cal.Rptr.2d 77, 86 (Ct. App. 1991), review dismissed, 24 Cal. Rptr. 2d 587 (1993); see generally Employers Beginning to Abandon Psychological Tests, Speaker Says, Daily Lab. Rep. (BNA) No. 151, at A-12-13 (Aug. 9, 1993) (reporting that the parties ultimately settled the case out of court for $2 million).
Certain questions, taken from test items on the MMPI, asked applicants about their religious preferences and sexual orientation. Id. at 79-80. The court stated that the employer was required to demonstrate a “compelling interest” for using the test and concluded that the questions inquiring into areas of sexual and religious nature were overly intrusive and did not relate to the job. Id. at 85-86. See also Cort v. Bristol-Myers, Co., 431 N.E.2d 908, 912 (Mass. 1982) (employees failed to state claim for violation of right of privacy where plaintiffs did not respond to “intrusive” questions).
The Achiever, the Scoreboard, the Guardian and the Performer, are constructed and validated to be job-related assessments, and do not contain psychologically-oriented questions to establish abnormal behavior problems and their degree. The questions on these assessments are solely job-related and responses are directly aligned to job performance.
Legality of the Achiever
Neither the E.E.O.C. nor the Department of Labor or any other government agency has the right to approve any test or employment procedure. The extent of their authority is to audit or investigate unacceptable procedures that have resulted in or are resulting in discrimination.
On numerous occasions, the FDIC has audited banks using the Achiever assessment system. In each case, the system has always passed with flying colors. The same is true with the OFCC audits of federal contractor clients. The Dallas district office of the EEOC and other EEOC offices across the country are acquainted with Candidate Resources' assessment systems. To date, there has never been an adverse finding against any employer for using the Achiever system, nor any out-of-court settlement.
The Achiever was reviewed by Mr. Charles E. Duffy, District Director of U.S. Department of Labor, Employment Standards Administration Office of Federal Contract Compliance Programs; 55 Erieview Plaza, Suite 520, Cleveland, Ohio 44114; 215-522-7380, who commented that there is no need to have the Achiever validated within each company since there is only a slight possibility of any adverse effect on a protected group, particularly since there are no passing or failing scores yielded by the Achiever. Nevertheless, the Achiever is validated through the construct validation process and concurrent validations are continuously in progress on an ongoing basis.
Utilizing the Achiever properly ensures protection against E.E.O.C. problems and adverse impact. When the Achiever is properly implemented and utilized in conjunction with other standard hiring and interviewing procedures, it strengthens the employers' position of taking affirmative action to ensure that applicants and employees are treated fairly without regard to race, color, age, religion, sex or national origin.
Validity of the Achiever
Validity in testing occurs when a test actually measures what it is intended to measure. If a test is valid, then the employer knows that it is directly measuring an individual’s ability to perform the job and not measuring something else. Validity and test development are interrelated. A properly developed test should be valid, but additional statistical analysis of the test is required to verify validity.
The Achiever was developed and validated by James E. Moore, Ph.D., formerly of Purdue University, along with other prominent psychologists. Subsequently, the technical expertise of Mr. Roger Pryor, Master of Psychology; Dr. Max Fogel, Licensed Clinical Psychologist, Ph.D., University of Iowa, Senior Medical Research Scientist, Eastern Pennsylvania Psychiatric Institute, Associate Professor in Psychiatry, University of Pennsylvania; Dr. Stanley Abrams, psychologist and medical doctor known for his work with the Kaiser Foundation, his research in polygraphy and his book, The Legal Basis of Polygraphy, have made the assessment what it is today.
Created in 1967, the published assessment was first utilized in conjunction with other known tests. Later, Dr. Moore directed assessments of people to compile construct validation. The instrument was then updated and again revalidated in 1972 at a cost of tens of thousands of dollars.
The Achiever has been validated using the following three forms of validity:
CONSTRUCT: refers to the extent to which dimensions with similar names on different tests relate to one another. Two things that correlate highly are not necessarily identical, but do provide reassurance that they are related and are a "construct" or part of the makeup (like honesty, dependability, sociability, etc.) of an individual as related to actual job performance. The aptitudes and dimensions of The Achiever have been correlated to the MMPI and 16PF, two highly respected instruments, to verify the constructs measured by The Achiever and provide Construct Validity.
CRITERION: occurs when test data on applicants and/or employees is studied to determine if there are direct correlations between the test data and job performance. The Achiever was validated through the criterion approach using test data from individuals from a variety of backgrounds and in many different occupations. The Achiever Criterion Validation study produced results demonstrating strong correlations with job performance and confirmed that The Achiever is a valid predictor of job performance.
CONCURRENT: is a form of Criterion validity and is an approach whereby employees are rated on their performance and their test scores are compared to their performance ratings to determine correlations between the test scores and job performance. The Achiever benchmarking process is a form of concurrent validity.
Opinion Letter
May 26, 2005
Mr. Tom Hamilton
SelectionResources.com
4090 Westown Parkway, Suite A-304
West Des Moines, IA 50266<
Dear Tom:
Thank you for your inquiry concerning the legality and validity of the Achiever assessment. Candidate Resources, Inc., through its years of operations with hundreds of thousands of people having gone through its assessment, has endeavored to continually ensure that its assessments (tests) and questions thereof are solely of a job-related nature. Candidate Resources’ assessment systems have been reviewed by the Office of Federal Contract Compliance (OFCC) who have found nothing discriminatory about their use, or the need to validate them within any particular company or within any particular job.
The Achiever has been established and validated in accordance with the procedures described in “Standards of Educational Psychological Tests and Manuals,” which is referred to in paragraph (2) 1607.6, “Minimum Standards for Evaluation,” Federal Register Volume 35, dated Saturday, August 1, 1970. It is therefore not discriminatory and is in compliance with E.E.O.C. and other Federal Regulations.
In validating the Achiever, two different types of validation were utilized: Construct and Criterion. Construct validity refers to the extent to which dimensions on different tests with similar names relate to each other. Two things that correlate highly are not necessarily identical, but do provide reassurance that they are related and are a “construct" or part of the makeup (like honesty, dependability, sociability, etc.) of an individual as related to actual job performance. By relating the aptitudes and dimensions in The Achiever to those of assessments deemed valid by the psychology community, such as the MMPI and 16PF, the developers were able to determine that The Achiever has construct validity.
Additionally, the developers of The Achiever utilized the Criterion Validation process to further enhance the validity of the assessment. This form of validity correlates assessment scores with employee success on the job. By studying hard indices of job performance and correlating the mental aptitudes and personality dimensions of The Achiever to the indices, the developers were able to determine that The Achiever is an effective predictor of job performance.
Further, The Achiever was developed to allow the use of Concurrent Validation within an organization. Concurrent Validation is a form of Criterion Validation in which successful employees within an organization are assessed with The Achiever, and their scores are analyzed to derive a Benchmark. The Benchmark can then be used to select, train and develop employees to optimize job fit and performance.
In the almost 40 years The Achiever has been in use, we are aware of no instances of adverse impact against protected groups or claims relating to invasion of privacy. Given the strict validation process followed in the development of the instrument, and the ongoing concurrent validation, a lack of adverse impact should not be surprising.
Further, when training employers to utilize our assessments, we emphasize that an assessment is merely one of many tools an employer should use to determine the ability of an individual to successfully perform a job, and that the assessment results must not be allowed to account for more than one-third of the final decision. When used in this manner, an assessment cannot result in adverse impact since it is not the determining factor in an employment decision.
Sincerely,
