Last week’s EmployNews reported on a proposal by the Equal Employment Opportunity Commission to withdraw its enforcement guidance on use of criminal and other background checks in employment. Last Friday, the EEOC made a corresponding move to withdraw its 1978 Uniform Guidelines on Employee Selection Procedures. These guidelines explain how employers can and cannot use tests and other measuring tools for recruiting and other purposes. If the test has a statistically disparate impact against a protected class, the employer would have to demonstrate a business necessity for the use of such test, and prove the absence of alternative measuring tools that do not have the same disparity. The guidance also explains how such tests can be statistically verified to avoid a disparate impact.

As with the criminal background guidance, this withdrawal follows the Trump administration’s position that federal civil rights laws require a demonstration of intent to discriminate to prove a violation. A facially neutral test that screens out a protected class in numbers beyond its representation in the applicant pool would not violate Title VII or related laws absent proof that it was used for this purpose.

Despite this move, the Supreme Court’s 1971 decision in Griggs v. Duke Power has never been overturned. This case recognized the disparate impact theory as a valid basis for claims of violation of federal civil rights laws. The EEOC’s recent moves may reflect an effort to get the Supreme Court to accept a case that would revisit Griggs. Presumably, under its Loper Bright decision, the court would not defer to the EEOC’s opinion on the viability of disparate impact claims going forward.

For now, employers may want to exercise caution before using statistically unverified tests and other measuring tools in hiring. While the Supreme Court may eventually review this legal question, for now this withdrawal would not prevent a private plaintiff from suing the company claiming that a test used in hiring illegally excluded them from employment despite the lack of evidence of intent to do so. 

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